FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILIP T. REEB, 

Petitioner-Appellant, No. 09-35815

v. D.C. No.  08-CV-01184-HA JEFFREY THOMAS, Warden, FCI

Sheridan, AKA J.E. Thomas, OPINION

Respondent-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, Senior District Judge, Presiding

Submitted December 7, 2010*

Seattle, Washington

Filed March 3, 2011

Before: Diarmuid F. O’Scannlain and Richard C. Tallman,

Circuit Judges, and David Alan Ezra,** District Judge.

Opinion by Judge Ezra

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable David Alan Ezra, United States District Judge for the

District of Hawaii, sitting by designation. 

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COUNSEL

Marc Friedman, Esq., Eugene, Oregon, for the appellant.

Kevin Danielson, Assistant United States Attorney, Portland,

Oregon, for the appellee.

OPINION

EZRA, District Judge:

This case requires us to decide whether a district court has

subject matter jurisdiction to review the Bureau of Prisons’

(“BOP”) individualized residential drug abuse program

REEB v. THOMAS 3089
(“RDAP”) determinations, a question of first impression in

this Circuit. The existence of subject matter jurisdiction is a

question of law reviewed de novo. Puri v. Gonzales, 464 F.3d

1038, 1040 (9th Cir. 2006). Because we hold that 18 U.S.C.

§ 3625 precludes judicial review under the Administrative

Procedure Act (“APA”) of the BOP’s individualized RDAP

determinations made pursuant to 18 U.S.C. § 3621, we vacate

and remand to the district court. 

I. Background

RDAP is an intensive drug treatment program for federal

inmates with documented substance abuse problems. 28

C.F.R. § 550.56.1 The program utilizes both individual and

group activities and requires at least 500 hours of treatment

over a period of 6 to 12 months. Id. Treatment is conducted

in a unit set apart from the general prison population and is

followed by institutional and/or community-based transitional

programs. Id. Successful completion of RDAP can result in

up to a one-year reduction in a prisoner’s sentence. 18 U.S.C.

§ 3621(e)(2)(B). 

On April 22, 2003, Petitioner Philip T. Reeb was convicted

of possession with intent to distribute methamphetamine in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and (B), and was

sentenced to 135 months imprisonment followed by 5 years

supervised release. Reeb was found eligible for admission

into RDAP on June 30, 2006, and he began the program on

March 3, 2008 at the Federal Correctional Institution at Sheridan, Oregon. After exhibiting disruptive behavior in group

counseling sessions on several occasions, Reeb was expelled

from RDAP on April 2, 2008. 

1Although the BOP subsequently repealed 28 C.F.R. § 550.56, this regulation was in effect at all times pertinent to the instant appeal. The current, comparable regulation, effective March 16, 2009, is set forth at 28

C.F.R. § 550.53. 

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On October 6, 2008, Reeb filed a habeas petition in the

United States District Court for the District of Oregon pursuant to 28 U.S.C. § 2241, challenging the BOP’s decision to

expel him from RDAP and seeking both readmission into

RDAP and a twelve-month reduction in his sentence upon

successful completion of the program. The Government

argued in its answer to Reeb’s habeas petition that the district

court lacked jurisdiction to review the BOP’s expulsion decision. Specifically, the Government argued that 18 U.S.C.

§ 3625 precludes judicial review of individualized RDAP

determinations made pursuant to 18 U.S.C. § 3621. On

August 31, 2009, the district court concluded that federal

courts have jurisdiction to determine whether the BOP exercised its discretion to administer RDAP properly and found

that Reeb’s expulsion from RDAP was not an abuse of discretion. Reeb timely filed an appeal on the ground that the district court erred in its determination that a rational basis

existed for his removal from RDAP. In response to Reeb’s

appeal, the Government reasserted its challenge to the district

court’s jurisdiction. 

II. Discussion

[1] The APA provides a cause of action for persons “suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the meaning of

a relevant statute,” 5 U.S.C. § 702, but withdraws that cause

of action to the extent that the relevant statute “preclude[s]

judicial review” or the “agency action is committed to agency

discretion by law,” id. § 701(a). “ ‘Whether and to what

extent a particular statute precludes judicial review is determined not only from its express language, but also from the

structure of the statutory scheme, its objectives, its legislative

history, and the nature of the administrative action

involved.’ ” Sackett v. U.S. Envtl. Prot. Agency, 622 F.3d

1139, 1143 (9th Cir. 2010) (quoting Block v. Cmty. Nutrition

Inst., 467 U.S. 340, 345 (1984)). Agency actions can be held

unlawful when they are “arbitrary, capricious, an abuse of disREEB v. THOMAS 3091
cretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). 

[2] Congress delegated to the BOP the duty to manage and

regulate all federal penal and correctional institutions. 18

U.S.C. § 4042(a)(1). Title 18 U.S.C. § 3621 governs imprisonment of persons convicted of federal crimes, and provides

that the BOP “shall make available appropriate substance

abuse treatment for each prisoner the [BOP] determines has

a treatable condition of substance addiction or abuse.” Id.

§ 3621(b). To carry out this requirement, the BOP must make

available residential substance abuse treatment for eligible

prisoners. Id. § 3621(e)(1). As an incentive for successful

completion of RDAP, the BOP may reduce a prisoner’s sentence by up to one year. Id. § 3621(e)(2)(B). Determining

which prisoners are eligible to participate in RDAP is within

the discretion of the BOP, id. § 3621(e)(5)(B), as is the decision to grant or deny eligible prisoners sentence reductions

upon successful completion of the program, id.

§ 3621(e)(2)(B). 

Congress specified in 18 U.S.C. § 3625, entitled Inapplicability of the Administrative Procedure Act, that “[t]he provisions of sections 554 and 555 and 701 through 706 of [the

APA] do not apply to the making of any determination, decision, or order under [18 U.S.C. §§ 3621-3625].” 18 U.S.C.

§ 3625. In determining whether 18 U.S.C. § 3625 precludes

judicial review under the APA of individualized RDAP determinations, we first consider the plain meaning of the statute’s

text. United States v. Nader, 542 F.3d 713, 717 (9th Cir.

2008) (citing Jonah R. v. Carmona, 446 F.3d 1000, 1005 (9th

Cir. 2006)). When the words of a statute are unambiguous

“ ‘judicial inquiry is complete.’ ” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (quoting Rubin v. United

States, 449 U.S. 424, 430 (1981)). 

[3] There is no ambiguity in the meaning of 18 U.S.C.

§ 3625. The plain language of this statute specifies that the

3092 REEB v. THOMAS
judicial review provisions of the APA, 5 U.S.C. §§ 701-706,

do not apply to “any determination, decision, or order” made

pursuant to 18 U.S.C. §§ 3621-3624. The BOP has authority

to manage inmate drug treatment programs, including RDAP,

by virtue of 18 U.S.C. § 3621. To find that prisoners can bring

habeas petitions under 28 U.S.C. § 2241 to challenge the

BOP’s discretionary determinations made pursuant to 18

U.S.C. § 3621 would be inconsistent with the language of 18

U.S.C. § 3625. Accordingly, any substantive decision by the

BOP to admit a particular prisoner into RDAP, or to grant or

deny a sentence reduction for completion of the program, is

not reviewable by the district court. The BOP’s substantive

decisions to remove particular inmates from the RDAP program are likewise not subject to judicial review.

[4] Reeb’s claim that he was wrongfully expelled from

RDAP, as well as his request for reinstatement into RDAP

and for a twelve-month reduction in his sentence, are matters

properly left to the BOP’s discretion. See Downey v. Crabtree, 100 F.3d 662, 670 (9th Cir. 1996) (“[The BOP] has

broad discretion over the entire drug-treatment process within

the federal corrections system, beginning with determining

which inmates ever enter substance-abuse programs.”). The

BOP’s Administrative Remedy Program, set forth at 28

C.F.R. § 542.10-19, provides a vehicle for aggrieved inmates

to challenge such discretionary BOP determinations.

[5] Reeb contends that because the BOP did not give him

proper formal warnings prior to his expulsion, the BOP has

“failed to follow the law” such that this Court has jurisdiction

to review his habeas claim. The formal warnings that Reeb

references are those specified in Program Statement 5330.10.2

2The BOP subsequently repealed Program Statement 5330.10, and has

now issued new policy statements governing RDAP. These new policy

statements took effect on March 16, 2009, and are not retroactive. Because

Program Statement 5330.10 was in effect when Reeb was expelled from

RDAP, it is the relevant program statement for this case. 

REEB v. THOMAS 3093
A habeas claim cannot be sustained based solely upon the

BOP’s purported violation of its own program statement

because noncompliance with a BOP program statement is not

a violation of federal law. Program statements are “internal

agency guidelines [that] may be altered by the [BOP] at will”

and that are not “subject to the rigors of the Administrative

Procedure Act, including public notice and comment.” Jacks

v. Crabtree, 114 F.3d 983, 985 n.1 (9th Cir. 1997). See also

Reno v. Koray, 515 U.S. 50, 61 (1995) (characterizing BOP

program statements as simply interpretive rules); BOP Program Statement 1221.66, Chapter 2.1 (referring to BOP program statements as “policies,” not rules). Our decision in

Bowen v. Hood, 202 F.3d 1211, 1221-22 (9th Cir. 2000) (per

curiam) is not to the contrary. In that case, we considered

whether the BOP could retroactively apply a restriction barring armed felons from eligibility for a sentence reduction to

prisoners who had already been given a determination of their

eligibility for the decreased sentence. Bowen, 202 F.3d at

1217-18. In holding that applying this restriction retroactively

would violate the prisoners’ settled expectations, we reasoned

that the BOP could not argue that the term provisional meant

anything other than its defined meaning in the program statement at issue. Id. at 1221-22. This is not comparable with the

instant situation, wherein Reeb is arguing that the BOP violated its own program statement. The BOP’s purported violation of its own program statement simply is not a violation of

federal law such that the district court would have jurisdiction

to review Reeb’s claim.3

3Reeb also argues that Cozine v. Crabtree, 15 F. Supp. 2d 997 (D. Or.

1998), is controlling and dictates that this Court has jurisdiction to review

the merits of his habeas petition. Aside from the fact that Cozine is not

binding precedent on this Court, it nonetheless is readily distinguishable

because in that case “the challenged decision was not a discretionary decision . . . . The BOP erroneously interpreted a statute, concluding that [the

petitioner’s prison] terms ran consecutively rather than concurrently, and

fixed the duration of his imprisonment accordingly.” Cozine, 15 F. Supp.

2d at 1015 (citation omitted). Conversely, here, Reeb filed a habeas petition to challenge the BOP’s discretionary decision to expel him from the

RDAP program. 

3094 REEB v. THOMAS
Facing uncertain law, and without the benefit of this

Court’s ruling, the district court concluded that jurisdiction

existed to review Reeb’s habeas petition. Specifically, the district court found that although 18 U.S.C. § 3625 states that the

judicial review provisions of the APA do not apply to determinations made pursuant to 18 U.S.C. § 3621, there was

nonetheless jurisdiction to review Reeb’s claim under the 5

U.S.C. § 706(2)(A) abuse of discretion standard. The district

court cited SEC v. Sloan, 436 U.S. 103 (1978) to support this

conclusion, but Sloan stands for the proposition that there is

judicial review for a claim that an agency exceeded its statutory authority. Sloan, 436 U.S. at 118-19. Reeb’s habeas petition does not involve such a claim, but rather only challenges

the BOP’s decision to expel him from RDAP. The Supreme

Court’s ruling in Sloan simply does not apply to the facts

here. 

[6] Accordingly, we hold that federal courts lack jurisdiction to review the BOP’s individualized RDAP determinations made pursuant to 18 U.S.C. § 3621, such as Reeb’s

claim herein. Although judicial review remains available for

allegations that BOP action is contrary to established federal

law, violates the United States Constitution,4 or exceeds its

4To the extent that Reeb alleges equal protection and due process violations, these claims must necessarily fail. As to the equal protection violation, Reeb does not present any facts demonstrating that he was treated

differently from others who were similarly situated to him. See McLean

v. Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999) (finding that an equal

protection violation requires the petitioner to show that similarly situated

people are being treated differently). Reeb also cannot prevail on his due

process claim because inmates do not have a protected liberty interest in

either RDAP participation or in the associated discretionary early release

benefit. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442

U.S. 1, 7 (1979) (determining that a prisoner does not have a constitutional

right to be released prior to the expiration of a valid sentence); Moody v.

Daggett, 429 U.S. 78, 88 n.9 (1976) (concluding that discretionary determinations regarding conditions of confinement do not create due process

rights); Jacks, 114 F.3d at 986 n.4 (finding that 18 U.S.C. § 3621(e)(2)(B)

does not create a due process liberty interest in a one-year sentence reduction). 

REEB v. THOMAS 3095
statutory authority, Reeb’s habeas petition alleges only that

the BOP erred in his particular case.5 Because the district

court lacked jurisdiction to adjudicate the merits of Reeb’s

habeas petition, we vacate its judgment and remand with

instructions to dismiss for lack of jurisdiction. 

VACATED and REMANDED.

5Myriad cases examine the validity of BOP regulations and determinations. See, e.g., Lopez v. Davis, 531 U.S. 230, 232-33 (2001) (holding that

the BOP had authority under 18 U.S.C. § 3621 to pass a regulation categorically denying early release to prisoners whose current offense

involved possession, carrying, or use of a firearm); Mora-Meraz v.

Thomas, 601 F.3d 933, 935 (9th Cir. 2010) (determining that the BOP’s

“unwritten requirement” that prisoners must present documented evidence

of substance abuse within twelve months of admission into RDAP was

valid under the APA); Crickon v. Thomas, 579 F.3d 978, 988-89 (9th Cir.

2009) (finding invalid under the APA the BOP’s regulation categorically

excluding prisoners with certain prior convictions from early release eligibility); Arrington v. Daniels, 516 F.3d 1106, 1116 (9th Cir. 2008) (concluding that the BOP’s exclusion from early release eligibility inmates

who were convicted of offenses involving possession, use, or carrying of

a firearm was invalid under the APA); McLean, 173 F.3d at 1184-86

(reviewing the petitioners’ equal protection and due process claims after

determining that the BOP regulations at issue were a valid exercise of the

BOP’s statutory authority). 

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