Opinion
3:20-cv-02019-AC 3: 20-cv-02020-AC 3: 20-cv-02065-AC 3: 20-cv-02123-AC
11-09-2021
ADRIAN CAZARES, AUSTIN G. SCHWARZ, JORGE DIAZ and IGNACIO ANDRES ZAZUETA, Petitioners, v. DEWAYNE HENDRIX, Warden, FCI Sheridan, Respondent.
Lisa Hay Federal Public Defender Elizabeth G. Daily Assistant Federal Public Defender Attorneys for Petitioners Scott Erik Asphaug Acting United States Attorney Jared D. Hager Assistant United States Attorney Attorneys for Respondent
Lisa Hay Federal Public Defender Elizabeth G. Daily Assistant Federal Public Defender Attorneys for Petitioners
Scott Erik Asphaug Acting United States Attorney Jared D. Hager Assistant United States Attorney Attorneys for Respondent
FINDINGS AND RECOMMENDATION
ACOSTA, Magistrate Judge.
Petitioners, current or former inmates at FCI Sheridan, bring these consolidated habeas corpus actions pursuant to 28 U.S.C. § 2241. Petitioners allege that the Federal Bureau of Prisons (“BOP”) refused to calculate and apply Earned Time credits to their files in accordance with the First Step Act (“FSA”), 18 U.S.C. § 3632(d)(4)(A). While respondent insists that petitioners have not yet earned any time credits, he maintains that the court should resolve two questions of statutory interpretation related to their calculation: first, what is a qualifying Evidence Based Recidivism Reduction (“EBRR”) program and Productive Activity (“PA”) under the FSA, and second, what constitutes “30 days of successful participation” in qualifying activities and programs.
For the reasons set forth below, habeas relief should be granted in part.
BACKGROUND
It is undisputed that the consolidated petitioners are eligible for Earned Time credits to the extent that they have no disqualifying offenses and the BOP assessed them as having a low or minimum risk of recidivism. The respondent in each case agrees that when the petitioner “successfully completes 30 days of assigned evidence-based recidivism reduction programming or productive activities, he will be entitled to 15 days of FSA credit” in accordance with 18 U.S.C. § 3632(d)(4).
Notably, each petitioner alleges that he asked his case manager to apply Earned Time credits to his file but that he was told credits were not yet being calculated at FCI Sheridan. Petitioners further allege that when they raised the issue in a “Town Hall, ” the Warden refused to take up the subject and warned them that they could be disciplined if they pursued it. Each petitioner also has undergone a risk and needs assessment, the case managers at FCI Sheridan appear to acknowledge identified needs from only ten of thirteen categories - excluding family/parenting, substance abuse, and education. Accordingly, despite at least three of the four petitioners having completed the Residential Drug Abuse Program (“RDAP”), a program requiring a “verifiable substance abuse disorder” to qualify for participation, FCI Sheridan does not acknowledge that any of them have an identified need in substance abuse. Notable too is petitioners Cazares's and Schwartz's contention that they understood their participation in RDAP to qualify them for Earned Time credits under the FSA.
Significantly, a November 8, 2019 date-stamped Memo from the BOP Reentry Services Division concerning the “First Step Act Needs Assessment” purports to “provide[] information on how to add needs information to the risk and needs assessment process and refer inmates to appropriate programs.” See [10-1] (Attachment to case manager, Ms. Soldati's Declaration). The Memo makes clear: (1) that the BOP's current practices already include needs assessment in many of the thirteen need areas; (2) that many of the needs assessments are already completed “on all inmates at intake, and staff are not required to reassess those needs at this time”; and (3) that “Unit Management staff are currently responsible for assessing the substance [abuse] need at intake via the DRUG ED SENTRY assignment. No. change is required for this process.” Id. at pp. 1-2, 10. In light of this guidance, it is unclear why case managers did/do not formally recognize “substance abuse” as an identified need for any of the consolidated petitioners.
“RDAP is an intensive drug treatment program for federal inmates with documented substance abuse problems. [28 C.F.R. § 550.53].” Reeb v. Thomas, 636 F.3d 1224, 1225 (9th Cir. 2011).
DISCUSSION
I. Exhaustion of Administrative Remedies
The parties agree that petitioners did not properly exhaust their administrative remedies. Petitioners insist that because staff categorically refused to calculate time credits in accordance with the FSA, further administrative review would have been futile and would have risked irreparable harm due both to delay and to retaliation. Initially, respondent argued that petitioners failed to show they would be irreparably harmed and that the court, by resolving the issues here, would encourage inmates to deliberately bypass the administrative scheme in future sentence computation cases. See Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004). However, as indicated above and despite petitioners' failure to exhaust, respondent asks the court to resolve the noted questions of statutory interpretation.
Federal prisoners seeking habeas relief under 28 U.S.C. § 2241 are required to exhaust their federal administrative remedies prior to filing their petitions in federal court. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). However, the exhaustion requirement is not a statutory requirement and may be excused. Laing, 370 F.3d at 997. A court may excuse exhaustion if administrative remedies are inadequate, futile, or where pursuit of them would irreparably harm the petitioner without immediate judicial relief. Id. at 1000-01.
Here, to the extent respondent has not withdrawn his exhaustion argument entirely, the court should excuse petitioners' failure to exhaust their administrative remedies on the basis: (1) that the parties agree this case presents a dispute of statutory construction and petitioners credibly contend that exhaustion of their administrative remedies could irreparably injure them in light of their fast-approaching release dates and the potential denial of timely consideration for transfer to community corrections or supervised release; and (2) the record indicates that petitioners reasonably understood they faced agency retaliation when the Warden warned them that they could be disciplined, e.g., given a “shot, ” for raising the issue of FSA time credits before they were advised that it was time to do so. See Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2016)(“[A]n administrative procedure is unavailable when (despite what regulations or guidance materials promise)” (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) the “administrative scheme might be so opaque that it becomes, practically speaking, incapable of use”; and (3) the “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.”).
For these reasons, the court should conclude that exhaustion is not a bar to it resolving the identified issues of statutory construction or granting relief on this habeas action.
II. Statutory Construction
A. Relevant Provisions of the FSA
On December 21, 2018, Congress enacted the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. The Act implemented several sweeping prison and sentencing reforms. At issue here are provisions in the law creating a new risk and needs assessment system to provide appropriate programming for inmates and encourage participation through various incentives and rewards, including Earned Time credits for eligible inmates. In accordance with 18 U.S.C. § 3632:
(a) In general.-Not later than 210 days after the date of enactment of this subchapter, the Attorney General, in consultation with the Independent Review Committee authorized by the First Step Act of 2018, shall develop and release publicly on the Department of Justice website a risk and needs assessment system (referred to in this subchapter as the “System”), which shall be used to-
(1) determine the recidivism risk of each prisoner as part of the intake process, and classify each prisoner as having minimum, low, medium, or high risk for recidivism;
(2) assess and determine, to the extent practicable, the risk of violent or serious misconduct of each prisoner;
(3) determine the type and amount of evidenced-based recidivism reduction programming that is appropriate for each prisoner and assign each prisoner to
such programming accordingly, and based on the prisoner's specific criminogenic needs, and in accordance with subsection (b);
(4) reassess the recidivism risk of each prisoner periodically, based on factors including indicators of progress, and of regression, that are dynamic and that can reasonably be expected to change while in prison;
(5) reassign the prisoner to appropriate evidence-based recidivism reduction programs or productive activities based on the revised determination to ensure that-
(A) all prisoners at each risk level have a meaningful opportunity to reduce their classification during the period of incarceration;
(B) to address the specific criminogenic needs of the prisoner; and (C) all prisoners are able to successfully participate in such programs;
(6) determine when to provide incentives and rewards for successful participation in evidenced-based recidivism reductions programs or productive activities in accordance with subsection (e);
(7) determine when a prisoner is ready to transfer into prerelease custody or supervised release in accordance with section 3624; and (8) determine the appropriate use of audio technology for program course materials with an understanding of dyslexia.
In carrying out this subsection, the Attorney General may use existing risk and needs assessment tools, as appropriate.
(b) Assignment of evidence-based recidivism reduction programs.-The System shall provide guidance on the type, amount, and intensity of evidence-based recidivism reduction programming and productive activities that shall be assigned for each prisoner, including-
(1) programs in which the Bureau of Prisons shall assign the prisoner to participate, according to the prisoner's specific criminogenic needs; and (2) information on the best ways that the Bureau of Prisons can tailor the programs to the specific criminogenic needs of each prisoner so as to most effectively lower each prisoner's risk of recidivism.
(c) . . . .
(d) Evidence-based recidivism reduction program incentives and productive activities rewards.-The System shall provide incentives and rewards for prisoners to participate in and complete evidence-based recidivism reduction programs as follows:
. . . .
[4] Time Credits.-
(A) In general.-A prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits as
follows:
(i) A prisoner shall earn 10 days of time credits for every 30 days of successful completion in evidenced-based recidivism reduction programming or productive activities.
(ii) A prisoner determined by the Bureau of Prisons to be a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every
30 days of successful participation in evidence-based recidivism reduction programming or productive activities.
(B) Availability.-A prisoner may not earn time credits under this paragraph for an evidence-based recidivism reduction program that the prisoner successfully completed-
(i) prior to the date of enactment of this subchapter; or
(ii) during official detention prior to the date that the prisoner's sentence commences under section 3585(a).
(C) Application of time credits toward prerelease custody or supervised release.-Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.
B. Standard of Law
The starting point for statutory construction is that “words generally should be ‘interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.'” Wisconsin Cent. Ltd. v. United States, 138 S.Ct. 2067, 2074 (2018)(quoting Perrin v. U.S., 444 U.S. 37, 42 (1979)). Courts must also bear in mind the “‘fundamental canon of statutory construction that the words of the statute must be read in their context and with a view to their place in the overall statutory scheme.'” Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 320 (2014)(quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). “When the words of a statute are unambiguous . . . judicial inquiry is complete.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 (1992)(quotation omitted). Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always 'give effect to the unambiguously expressed intent of Congress.'” Util. Air Regulatory Grp., 573 U.S. at 326(quoting National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007)(quoting Chevron, U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)).Hare v. Ortiz, No. 20-CV-14093, 2021 WL 391280 *5 (D.N.J. Feb. 4, 2021).
If a statute is silent or ambiguous with respect to a specific issue, a court must “sustain the agency's interpretation if it is ‘based on a permissible construction' of the Act.” Barnhart v. Walton, 535 U.S. 212, 218 (2002)(quoting Chevron, 467 U.S. at 843). This standard applies to the BOP's interpretation of a statute, even if the interpretation appears in a program statement or internal agency guideline. Reno v. Koray, 515 U.S. 50, 61 (1995); Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir. 2000). Under Skidmore v. Swift & Co., 323 U.S. 134 (1944), the deference shown agency interpretive guidelines, that are exempt from the APA's notice and comment requirements, “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it the power to persuade, if lacking the power to control.” United States v. Mead, 533 U.S. 218, 228 (2001)(citing Skidmore, 323 U.S. at 140); Tablada v. Thomas, 533 F.3d 800, 806 (9th Cir. 2008).
C. Analysis
1. Eligible EBRR programs and PAs
As an initial matter, the parties disagree about whether the definitions of EBRR programs and PAs, as well as the above noted provisions for awarding credit, are ambiguous. 18 U.S.C. §3635 (3) & (5) provide that:
The term “evidence-based recidivism reduction program” means either a group or individual activity that -(A) has been shown by empirical evidence to reduce recidivism or is based on research indicating that it is likely to be effective in reducing recidivism; (B) is designed to help prisoners succeed in their communities upon release from prison; and (C) may include - [a No. of enumerated activities such as academic classes, substance abuse treatment, vocational training, a prison job, etc.]
***
The term “productive activity” means either group or individual activity that is
designed to allow prisoners determined as having a minimum or low risk of recidivating to remain productive and thereby maintain a minimum or low risk of recidivating and may include the delivery of the programs described in paragraph (1) to other prisoners.
Petitioners' Arguments
Petitioners argue that these expansive definitions coupled with § 3632(d)(4)(A)'s mandatory “shall” language are unambiguous and comprehensive-thereby leaving little room for agency discretion. Moreover, petitioners insist that the statute makes clear that the BOP must award credit for all activities that fall under the broad definitions of EBRR programs and Pas, regardless of whether they appear in the FSA Approved Programs Guide (“Guide”) or whether they were assigned based on an assessed need. They contend that the plain meaning of the FSA makes clear that qualifying programs and activities existed prior to the law's enactment, negating the BOP's criteria that they be listed in the Guide. They further note that neither the mandatory time award provisions, nor the definitions of qualifying programs or activities contain qualifiers requiring that ETCs be limited to programs assigned based on an identified need. Petitioners argue that Congress was explicit when it intended the Attorney General or the BOP to act-as with the development of the “System” in § 3632(a), but that there is no such delegation providing for BOP discretion in the award of time credits in §§ 3632(d)(4) and 3635(3) & (5)-instead, there is a mandatory “shall”. In sum, petitioners insist that taken in context and considering the goals of the FSA to combat overincarceration, enhance public safety and reduce recidivism with an incentive structure to encourage participation in EBRR programs and PAs, the court should determine that there is no genuine ambiguity in the statute and no deference due the BOP's interpretations.
The Guide lists “all approved [EBRR programming and productive activities], including their descriptions, as well as setting forth the locations at which they are available and the No. of hours that can be earned by participating in and completing them.” Beauchamp v. Bradley, No. CV 20-11295 GJS, 2021 U.S. Dist. LEXIS 31472 at *8-9 (C.D. Cal. 2021).
Alternatively, to the extent deference is warranted, petitioners maintain that the court should reject the BOP's interpretations as contrary to the statute's plain meaning for these same reasons. Petitioners posit that the statute's provisions directing the BOP to use the risk and needs system to provide guidance in the type, amount, and intensity of EBRR programming and PAs that shall be assigned to each prisoner are intended to efficiently match scarce resources with targeted need but insist that they do not bear on or preclude an expansive use of ETCs and other rewards to incentivize participation in all beneficial programming. Finally, petitioners point to the difficulty under the BOP's interpretations of some prisoners being able to earn time credits because they have minimal needs (and thus fewer opportunities for programs and activities) and to their concern that the BOP does not currently have a valid and reliable tool for assessing inmate needs. Based on these shortcomings, they suggest the BOP's interpretations would result in arbitrary award of ETCs.
Respondent's Arguments
Respondent first argues that the statute makes clear Congress intended the BOP to develop a slate of qualifying programs and activities and that it is obligated to implement the legislation. Respondent also insists that several key terms bearing on the award of time credits, including “successfully completed, ” “30 days, ” “evidence-based recidivism reduction programs, ” and “productive activities” are ill-defined or fail to provide sufficiently clear guidance on how to implement related portions of the FSA. Accordingly, given this ambiguity, respondent insists that the BOP's interpretations are entitled to Chevron deference and that the court should uphold them because they are based on a “permissible construction” of the statute. Alternatively, acknowledging that proposed regulations as opposed to finalized, promulgated rules are at issue, respondent suggests that in accordance with United States v. Mead Corp., 533 U.S. 218, 227 (2001), the BOP's interpretive choices should, at a minimum, influence the court as it evaluates these questions.
Citing 18 U.S.C. §§ 3621(h) and 3631-3635, respondent contends that the FSA's text, purpose, and structure evince Congress' intent that the Attorney General identify the most effective anti-recidivism programming and that the BOP assign such programming to target inmates' specific criminogenic needs and award credit for successful participation in those assigned activities. Moreover, respondent argues that petitioners' view that inmates are entitled to time credits for all activities that satisfy the broad definitions of EBRR programs or PAs, regardless of whether they are listed in the Guide or linked to an identified need, would frustrate the purpose of the FSA by undercutting the incentive to participate in targeted programming meant to address an inmate's specific needs.
Finally, addressing petitioners' assertion that the BOP's needs assessment tools are lacking, respondent maintains that the statute is in its infancy and that it explicitly requires on-going review, quality assurance audits and improvements. He insists that such improvements are already underway via the expanding No. of programs that qualify for time credits as listed in new iterations of the Guide. Ultimately, he maintains that since the FSA does not preclude the BOP's interpretations and Congress charged that agency with implementing the statute, the court should uphold them.
Analysis
First, in the context of the relevant provisions of the statute, the court should conclude that there is a genuine ambiguity in the statute surrounding what constitutes qualifying EBRR programs and PAs. At a minimum, the need to reconcile the broad and relatively clear definitions of an EBRR program and PA set out at § 3635 (3) & (5) with Congress' directive that the Attorney General develop a risk and needs assessment system to determine, among other things, the type and amount of programming that is appropriate for each prisoner and assign him or her to such programming based on his or her needs and to provide guidance on the type, amount, and intensity of EBRR programming and PAs that shall be assigned to each prisoner (see § 3632(a) & (b)), creates a genuine ambiguity.
The court is sympathetic to petitioners' argument that limiting award of credit to programming and activities listed in the Guide and assigned to inmates based on an assessed need will in some cases, and particularly early in the FSA's implementation, result in unfair denial of credit. For example, in Cazares's case, it strains the imagination to think that Congress would not intend his work as a facilities painter and HVAC worker, activity that almost certainly falls under the broad definitions of an EBRR program and/or PA, to qualify him for time credits under the statute-especially when "work" is one of his identified needs. Though respondent maintained at oral argument that there is no evidence in the record supporting a finding that these specific prison jobs reduce recidivism, he acknowledged there is a commonsense argument that they do. Regardless, respondent maintains that the BOP is aware of scenarios like the ones presented in petitioners' cases and that the statute specifically contemplates that it will gather and process such feedback and evolve accordingly. Whatever mechanism or adjustment the BOP eventually employs to identify and capture additional qualifying programming and activities, respondent insists the statute obligates the BOP to use its substantive expertise to resolve these issues.
The court must scrutinize the agency's efforts to identify the statute's bounds and draw a line between permissible agency interpretation warranting deference and unbridled discretion. The above-noted concerns notwithstanding, at this early juncture and with the BOP's management and interpretation of the statute evolving in real time, the court should defer to the BOP's interpretations requiring: (1) that the qualifying programs and activities be listed in the Guide; and (2) that they be linked to an inmate's assessed need. Though presently the Guide is underinclusive, the Court recognizes its potential for assisting with the efficient and reasonably uniform national administration of the program, streamlining the award of ETCs, and providing a transparent resource for inmates as they seek and complete qualifying programming and activities with the expectation that they will receive ETCs. In addition, the court agrees with respondent that the text and organization of the statute supports a conclusion that Congress intended the Attorney General and the BOP to implement a system that links the risks and needs assessment with the award of time credits. At a minimum, the court should conclude that Congress intended them to employ their substantive expertise in prison administration to implement this sweeping new program and that their interpretations requiring that qualifying programs and activities be listed in the Guide and that they be linked to an identified need, however imperfect at present, are based on permissible statutory construction of the relevant portions of the FSA.
Relatedly, however, given what appear to be significant, inexplicable gaps in identifying or acknowledging assessed needs, even in the face of ample and specific guidance directing prison staff to rely on prior assessments in certain categories of need, reviewing courts should not defer to overly robotic assessments of inmate needs and/or formal “assignment” of related programing and activities. In particular, and for the reasons discussed above, the court is persuaded that even without a formal FSA assessment and assignment in the substance abuse area, admission into an RDAP program sufficiently establishes a need in that area for purposes of earning credit. Accordingly, the BOP should not deny ETCs to inmates, including petitioners, who completed RDAP after the enactment of the FSA on December 21, 2018 on the basis that the inmate did not have an identified need in substance abuse or that the program was not formally assigned in accordance with the FSA. In addition, the court should reject respondent's untenable position that only the “dual-diagnosis version” of RDAP, as opposed to the “standard version, ” is an FSA-qualified RDAP program entitled to credit. Regardless of any material differences between the two programs, the description of the program in the Guide makes abundantly clear that credit is available for standard version RDAP. As petitioners note, the Guide states that RDAP is available in 44 institutions and only four of those have a “Co-occurring Disorder Program” offering the dual-diagnosis version of RDAP.
2. Calculation of Time Credits -What Constitutes a “Day”?
Petitioners contend that they should earn 10 (or 15) days of time credit for every 30 days in which they successfully participate in an EBRR program or PA, regardless of the length of time in which they participated on any given day. Citing the Sentence Computation Manual, PS 5880.28 at 1-12, CN-02 (July 29, 1994), they insist this interpretation is consistent with the BOP's long-standing sentencing computation practices wherein it calculates any part of a day in custody serving a sentence as a full day served on the sentence and any part of a day in official detention as a full day for prior custody time credit purposes-unless the sentencing court specifically imposed a sentence for a term of hours. In contrast, while the BOP insists it could have interpreted a day to mean 24-hours, it did not because such an interpretation would provide too little credit to incentivize participation in the programs and activities as Congress intended. Instead, it interpreted a day as eight (8) hours to correspond with an average workday. Respondent's arguments notwithstanding, the court should reject the BOP's 8-hour interpretation as contrary to Congress's intent that a “day” means any part of a day. The court gleans Congress's intent from both the BOP's established use of the term in a comparable context and the object and policy of relevant portions of the law.
“In interpreting a statute, we look first to the plain language of the statute, construing the provisions of the entire law, including its object and policy, to ascertain the intent of Congress.” Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996)(internal quotation marks and citation omitted). *** “Where a statutory term is not defined in the statute, it is appropriate to accord the term its ‘ordinary meaning.'” Northwest Forest Resource Council, 82 F.3d 825, 833 (internal quotation marks and citation omitted). When there is no indication that Congress intended a specific legal meaning for the term, the court may look to sources such as dictionaries for a definition. See Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 1914-16, 141 L.Ed.2d 111 (1998)(relying upon dictionaries, literature, and newspaper reports, in addition to legislative history, to ascertain the meaning of the word “carry”).U.S. v. Mohrbacher, 182 F.3d, 1041, 1047-48 (9th Cir. 1999).
First, when Congress drafted the subject language and chose to award time credits based on days, not hours, of participation, it is reasonable to presume that involved agency stakeholders were aware of the BOP's well-established practice of awarding a full day of credit for any amount of time in custody or detention, unless the sentencing court imposed a sentence of an exact term of hours. Accordingly, the court is persuaded that Congress likely intended the term “day” to take on this same legal meaning and that it is fair to hold the BOP to its established use of the word.
In addition, Congress in essence defined the relationship between days of time credits and days of successful program participation as a 1:3 or 1:2 ratio: “[a] prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities” and “shall earn an additional 5 days [for a total of 15] of time credits for every 30 days of successful participation.” 18 U.S.C. § 3632(d)(4)(A). This reinforces the view that, as with its former practice of giving a full day of time credit for any amount of time served or in detention, Congress intended that a “day” mean any part of day. Interpreting a “day” as 8-hours would significantly water down the time credit to participation ratio and diminish inmate incentive to participate in programming, especially for those serving shorter sentences. While respondent argues that there is still an opportunity for inmates with shorter sentences to earn a “substantial reduction as a percentage of their overall sentence, ” and gives an example of how a low-risk inmate with a two-year sentence could, in theory, earn credits totaling 10% of the sentence after factoring potential good conduct credit, the legislative history surrounding the passage of the FSA, in addition to the language itself, is not consistent with a finding that Congress intended such a modest potential time reduction.
Second, respondent's concern that petitioners' view would create “perverse incentives” by irrationally awarding the same amount of credit for successful completion of fewer hours of programming over the same No. of days is largely alleviated by the BOP's requirement that qualifying EBRR programs and PAs be included in the Guide. Since the program entries in the Guide delineate the No. of total available hours and recommended No. of days and/or sessions for completion, defining what constitutes a day of “successful participation” is relatively straightforward. For example, the Anger Management program in the Guide describes a course of twelve (12) weekly one-and-a-half-hour Cognitive Behavioral Therapy (“CBT”) sessions for completion. Under petitioners' interpretation, an inmate could tally one day of successful participation for every therapy session attended. This example and respondent's concern over perverse incentives underscore why the court should reject the BOP's 8-hour “average workday” interpretation. In addition to the Anger Management program, a brief scan of the Guide reveals that numerous programs do not lend themselves to the workday analogy. Instead, the No. of hours needed to successfully participate in and complete these programs and activities varies greatly. A day of successful participation in the Anger Management program is one-and-a-half hours, whereas a day of successful participation in a UNICOR job is “full or shared half time.” Comparing the value of participation in these programs based on the No. of hours an inmate dedicates to each program in any given day is akin to comparing apples to oranges. Were all or most of the programs and activities work-like in nature with average workday-like hour recommendations, respondent's interpretation might be reasonable, but that is not the case. Many of the programs and activities, appropriately identified as valuable programs warranting inclusion in the Guide, involve education, therapy, and treatment. These more intensive programs often do not match well with respondent's average workday analogy and to subscribe to the BOP's interpretation is to discourage participation in these programs contrary to Congress's intent.
In Hare at *12, the district court concluded that the “BOP's interpretation of a “day” is reasonable because it incentivizes approved EBRR programs and PAs equally, dependent on the total No. of hours of participation[, ]” rather than incentivizing prisoners “to participate in only those programs that require fewer hours per day.” This reasoning is facially appealing, but when fully considered it does not lend itself to the stated goal of incentivizing approved EBRR programs and PAs equally. To the contrary, it incentivizes inmates to bypass programs whose successful participation and successful completion require fewer hours per day even if they were assigned based on an identified need. Moreover, where the BOP has an alternative vehicle for defining what constitutes “successful participation” based on the best practices and goals of a specific program or activity as set forth in its description in the Guide, by defining a day as any part of the day, it can guard against unfair award of credits for too little daily effort without discouraging inmates from participating in valuable programs that target their individual needs.
Delahoz v. Spaulding, No. 1:21-cv-01204, 2021 WL 3884350, at *4-5 (M.D. Pa. Aug. 31, 2021), exemplifies why an interpretation defining a “day” as any part of a day (particularly given the BOP's ability to ascertain the parameters for successful participation and successful completion of programs based on their descriptions in the Guide) is consistent with Congress's intent to incentivize inmates to participate in targeted programming to meet their identified needs and why an interpretation defining a “day” as eight hours does not. In Delahoz, the court found that the petitioner completed two qualifying PAs related to his identified criminogenic needs in finance/poverty and substance abuse: Money Smart for Older Adults and the Non-Residential Drug Treatment Program. Relying on the BOP's 8-hours interpretation, it found petitioner accrued 52 (of the 240) hours of eligible programming needed to earn 10 (or 15) days of time credit. Under this interpretation, he would need to complete almost five times more programming to earn his first 10 (or 15) days of time credit. Contrast this with an interpretation that defines a “day” as any part of a day. Under the same facts, and assuming petitioner complied with the recommendations for participation and completion in the Guide, he would earn a day for each of the fourteen sessions of the Money Smart program he attended and a day for each of the twelve to sixteen sessions of the drug treatment program he participated in for a total of 26-30 days of successful participation in a PA-enough for, or just few days shy of, the 30 days of successful participation necessary to earn 10 (or 15) days of time credit. The court should conclude that the latter interpretation tracks with Congress' intent to incentivize participation by awarding time credits for successful completion of targeted programming, and that the former does not.
Respondent's concern about perverse incentives notwithstanding, the real worry may be that the BOP's barriers to earning time credits are so onerous that inmates will feel their efforts to accrue meaningful time credits are elusive and be discouraged from participating in targeted programming as intended by Congress; or, as discussed above, they will opt only to participate in programs that offer more hours of programming in a day, regardless of the appropriateness of a program to address their individual needs-an outcome also contrary to Congress's intent.
3. Timing of ETCs Calculations
Petitioners maintain that Congress intended inmates earn time credits without delay after their initial risk and needs assessments and completion of qualifying programming. To support this position, they note that the statute prioritizes program placement based on release date; that it contemplates the phase-in period would continue even as inmates participate in and complete programs and activities; that it prohibits the award of credits before the FSA went into effect on
December 21, 2018, suggesting credits would be available after that date; and it provides that the award of credits before the phase-in period, i.e., between December 2018 and January 2020, is discretionary, thereby suggesting that it is mandatory after.
Courts have divided on the issue of whether habeas claims seeking the application of ETCs are ripe. Several have concluded that such claims will not become ripe until January 15, 2022, the end of the phase-in period. See, e.g., Cohen v. United States, No. 20-cv-10833, 2021 WL 1549917, at *2-3 (S.D.N.Y. Apr. 20, 2021); Kennedy-Robey v. FCI Pekin, No. 20-cv-01371, 2021 WL 797516, at *4 (C.D. Ill. Mar. 2, 2021); Hand v. Barr, No. 1:20-cv-348, 2021 WL 392445, at *5 (E.D. Cal. Feb. 4, 2021), report and recommendation adopted, 2021 WL 1853295 (E.D. Cal. May 10, 2021); Llewlyn v. Johns, No. 5:20-cv-77, 2021 WL 535863, at *2 (S.D.Ga. Jan. 5, 2021),
report and recommendation adopted, 2021 WL 307298 (S.D. Ga. Jan. 29, 2021); Herring v. Joseph, No. 4:20-cv-249, 2020 WL 3642706, at *1 (N.D. Fla. Jan. 6, 2020). At least one court, the District of New Jersey, has concluded otherwise. See Goodman v. Ortiz, 207582, 2020 WL 5015613, at *6 (D.N.J. Aug. 25, 2020).Delahoz, No. 1:21-cv-01204, 2021 WL 3884350, at *2 n.1 (M.D. Pa. Aug. 31, 2021).
In Goodman, where the BOP did not dispute the petitioner was entitled to 120 days of ETCs, the narrow issue before that court was whether he was entitled to immediate application of those time credits under the FSA or whether the BOP could delay their award until January 15, 2022. Here, there is no agreement as to whether petitioners are entitled to any time credits, let alone how many. Nevertheless, where respondent has asked the court to resolve specific questions of statutory interpretation bearing on how the BOP should calculate ETCs, the court, having done so, is prepared to address timing question as well.
For the reasons discussed above, it appears that at a minimum some, if not all, of the petitioners are entitled to ETCs based on their completion of RDAP. However, the record before the court is not sufficiently developed to accurately calculate these time credits.
The court notes that with January 15, 2022 approximately two months away, the timing question will soon be moot. In addition, having surveyed the district court cases taking up the issue, the court concludes that additional briefing from the parties would not assist it in resolving this issue.
Respondent did not challenge petitioners' assertion that they are entitled to have any earned time credits applied immediately. For example, in Cazares's case, while respondent argued that the BOP had until January 15, 2022 to provide inmates an opportunity to earn FSA time credits, he noted that “when Cazares completes 30 days of assigned qualifying programming, he will be entitled to receive 15 days of FSA earned time credit.” Response to Habeas Petition [9], p. 8. At oral argument, however, respondent suggested that in accordance with § 3621(h)(4) the BOP has until January 15, 2022 to award any earned credit. The court has reviewed the reasoning of the several district courts that have considered the timing issue and determined that the FSA gives the BOP discretion to decide whether it will apply ETCs before January 15, 2022, and therefore, the courts cannot direct that agency to award ETCs prior to that date.
These arguments notwithstanding, Goodman's reasoning is persuasive. Even though that court acknowledged that the statute does not explicitly require the BOP to apply prisoner earned credits, it found that the ordinary meaning of “phase-in” combined with the statutory framework of § 3621(h), including the provision prioritizing program placement during the phase-in period to inmates nearest their release dates, “unambiguously supports the conclusion that the BOP must gradually implement the risk and recidivism program, including the priority application of incentives to prisoners whose release dates are nearer.” Accordingly, the court should conclude that Congress intended the BOP to award ETCs without delay to inmates who complete qualifying programming and to consider them for transfer to community corrections or supervised release when sufficient credit is earned. While the phase-in provisions allow the BOP to expand its offerings and extend opportunities to participate in programming to all inmates over the course of the phase-in period, a determination that the BOP may delay awarding time credits to inmates that complete qualifying programming until January 15, 2022 is contrary to the statute.
RECOMMENDATION
Based on the foregoing, the court should GRANT in part petitioners' consolidated habeas actions. Specifically, the court should direct respondent to review each of the consolidated petitioner's case files and calculate and award applicable Earned Time credits without delay and in accordance with the court's guidance concerning what constitutes a qualifying EBRR program or PA and what constitutes a “day” under the FSA.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any are due in 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party may respond to another party's objections within 14 days after the objections are filed. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response, or the latest date for filing a response.
IT IS SO ORDERED.