FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIM RAY SACORA, 

Petitioner-Appellant,

LARRY L. BEAMAN; TODD H. No. 10-35553

SONOBE,

DC No. Petitioners-Intervenors,  3:08-cv-0578 MA

v.

OPINION

JEFF E. THOMAS, Warden, Federal

Prison Camp, Sheridan, Oregon,

Respondent-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Malcolm F. Marsh, District Judge, Presiding

Argued and Submitted

October 4, 2010—Portland, Oregon

Filed December 6, 2010

Before: A. Wallace Tashima, Richard A. Paez, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Tashima

19415
COUNSEL

Stephen R. Sady, Chief Deputy Federal Public Defender,

Portland, Oregon, for the petitioner-appellant and petitionerintervenors.

19418 SACORA v. THOMAS
Kelly A. Zusman, Appellate Chief, Office of the United States

Attorney, Portland, Oregon, for the respondent-appellee.

OPINION

TASHIMA, Circuit Judge:

Tim Ray Sacora, Larry L. Beaman, and Todd Sonobe (collectively “Petitioners”) brought this habeas corpus action pursuant to 28 U.S.C. § 2241 challenging the policies by which

the Bureau of Prisons (“BOP”) places inmates in community

correctional facilities, also known as residential re-entry centers (“RRCs”).1

 Petitioners contend that the substance of the

BOP’s policies violates the statutory provisions that the policies purport to implement, 18 U.S.C. §§ 3621(b) and 3624(c),

and that the procedure by which the policies were adopted

violates the Administrative Procedure Act (“APA”).

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).

We conclude that the BOP’s policies violate neither the statutory provisions that they implement nor the APA. We therefore affirm the judgment of the district court.

I. BACKGROUND

A. Statutory and Regulatory Background

Two statutory provisions govern the BOP’s authority to

place inmates in its custody in RRCs: 18 U.S.C. §§ 3621(b)

and 3624(c). Section 3621 governs the authority of the BOP

to designate a prisoner’s placement in general while he or she

is in the BOP’s custody. In the context of RRCs, this section

governs the BOP’s authority in cases where a prisoner who

has more than a year left to serve of his or her prison sentence

1These facilities are referred to in the governing statute as community

corrections centers. See 18 U.S.C. § 3624(c). 

SACORA v. THOMAS 19419
requests a transfer to such a facility.2

 The policies and procedures by which the BOP classifies and designates inmates is

set forth in its Program Statement 5100.08, Inmate Security

Designation and Custody Classification (2006) (“Program

Statement 5100.08”), available at http://www.bop.gov/policy/

progstat/5100_008.pdf.

Congress also charged the BOP with preparing prisoners

for reentry to the community during the final months of their

terms of imprisonment. See 18 U.S.C. § 3624(c). Pursuant to

this section, prisoners may be placed in a RRC or in home

confinement. The BOP’s policies on the use of RRCs are set

forth in the agency’s Program Statement 7310.04, Community

Corrections Center (CCC) Utilization and Transfer Procedure (1998) (“Program Statement 7310.04”), available at

http://www.bop.gov/policy/progstat/7310_004.pdf.

2That governing statute provides: 

The Bureau of Prisons shall designate the place of the prisoner’s

imprisonment. The Bureau may designate any available penal or

correctional facility that meets minimum standards of health and

habitability established by the Bureau . . . that the Bureau determines to be appropriate and suitable, considering— 

(1) the resources of the facility contemplated; 

(2) the nature and circumstances of the offense; 

(3) the history and characteristics of the prisoner; 

(4) any statement by the court that imposed the sentence—

(A) concerning the purposes for which the sentence to

imprisonment was determined to be warranted; or 

(B) recommending a type of penal or correctional facility

as appropriate; and 

(5) any pertinent policy statement issued by the Sentencing

Commission pursuant to section 994(a)(2) of title 28. 

. . . . The Bureau may at any time, having regard for the same

matters, direct the transfer of a prisoner from one penal or correctional facility to another . . . . 

18 U.S.C. § 3621(b). 

19420 SACORA v. THOMAS
Prior to enactment of the Second Chance Act of 2007

(“SCA”), Pub. L. No. 110-199, 122 Stat. 657 (2008) (codified

at 42 U.S.C. §§ 17501-17555), § 3624(c) provided that the

BOP

shall, to the extent practicable, assure that a prisoner

serving a term of imprisonment spends a reasonable

part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that

will afford the prisoner a reasonable opportunity to

adjust to and prepare for the prisoner’s re-entry into

the community.

18 U.S.C.A. § 3624(c) (West 2008). The subsection also provided that this authority extended to placing a prisoner in

home confinement. Id.

Section 3624(c) was amended on April 9, 2008, by the

SCA to provide that the BOP

shall, to the extent practicable, ensure that a prisoner

serving a term of imprisonment spends a portion of

the final months of that term (not to exceed 12

months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the

community. Such conditions may include a community correctional facility.

Accordingly, after enactment of the SCA, § 3624 governs the

designation of prisoners to RRCs for the final months of their

sentences.3

(Text continued on page 19423)

3As amended, the statute in its entirety now provides: 

(c) Prerelease custody.— 

(1) In general.—The Director of the Bureau of Prisons shall,

to the extent practicable, ensure that a prisoner serving a term of

SACORA v. THOMAS 19421
imprisonment spends a portion of the final months of that term

(not to exceed 12 months), under conditions that will afford that

prisoner a reasonable opportunity to adjust to and prepare for the

reentry of that prisoner into the community. Such conditions may

include a community correctional facility. 

(2) Home confinement authority.—The authority under this

subsection may be used to place a prisoner in home confinement

for the shorter of 10 percent of the term of imprisonment of that

prisoner or 6 months. 

(3) Assistance.—The United States Probation System shall, to

the extent practicable, offer assistance to a prisoner during prerelease custody under this subsection. 

(4) No limitations.—Nothing in this subsection shall be construed to limit or restrict the authority of the Director of the

Bureau of Prisons under section 3621. 

(5) Reporting.—Not later than 1 year after the date of the

enactment of the Second Chance Act of 2007 (and every year

thereafter), the Director of the Bureau of Prisons shall transmit to

the Committee on the Judiciary of the Senate and the Committee

on the Judiciary of the House of Representatives a report describing the Bureau’s utilization of community corrections facilities.

Each report under this paragraph shall set forth the number and

percentage of Federal prisoners placed in community corrections

facilities during the preceding year, the average length of such

placements, trends in such utilization, the reasons some prisoners

are not placed in community corrections facilities, and any other

information that may be useful to the committees in determining

if the Bureau is utilizing community corrections facilities in an

effective manner. 

(6) Issuance of regulations.—The Director of the Bureau of

Prisons shall issue regulations pursuant to this subsection not

later than 90 days after the date of the enactment of the Second

Chance Act of 2007, which shall ensure that placement in a community correctional facility by the Bureau of Prisons is— 

(A) conducted in a manner consistent with section 3621(b)

of this title; 

(B) determined on an individual basis; and 

(C) of sufficient duration to provide the greatest likelihood

of successful reintegration into the community. 

19422 SACORA v. THOMAS
On April 14, 2008, five days after the SCA went into effect,

BOP officials issued a memorandum (the “April 14 Memorandum”) explaining the changes to the law and setting forth

guidance to BOP staff about how to administer the new law.

On October 21, 2008, well past the 90 day deadline provided

for in the SCA, the BOP issued the regulations required by the

statute. See Pre-Release Community Confinement, 73 Fed.

Reg. 62440-01 (Oct. 21, 2008) (codified at 28 C.F.R.

§§ 570.20-.22). Noting that the statutory deadline of July 8,

2008, had passed, the BOP determined that “[a]dopting these

rules through the normal notice-and-comment procedures

would not be consistent with the short statutory time-frame

provided for implementing these regulatory changes” and that

“[r]equiring formal notice-and-comment procedures would be

contrary to the public interest in this case.” Id. at 62442.

Accordingly, the BOP issued the regulations as an interim

final rule, and chose to “forgo the requirement under 5 U.S.C.

552(d) which provides for regulations to go into effect 30

days after the date of publication.” Id. Substantively, the regulations: (1) define the terms “community confinement” and

“home detention”; (2) provide that inmates may be designated

to community confinement as a condition of pre-release custody for a period not to exceed 12 months and to home detention for a period not to exceed the shorter of ten percent of the

inmate’s term of imprisonment or six months;4 and (3) provide that inmates will be considered for community confinement in a manner consistent with § 3621(b) on an individual

basis, with placements of sufficient duration to provide the

greatest likelihood of successful reintegration into the community.

The April 14 Memorandum details the relevant statutory

changes made by the SCA, explains how BOP staff should

18 U.S.C. § 3624(c). 

4The regulations also provide that these periods of time can be exceeded

where permitted by separate statutory authority. 

SACORA v. THOMAS 19423
make placement decisions in light of the statutory changes,

and provides a redline of 18 U.S.C. §§ 3621 and 3624(c) demonstrating those changes. The memorandum advises that

“[w]ith minor adjustments[,] . . . staff should make inmates’

pre-release RRC placement decisions on an individual basis

using current bureau policy, Program Statement No. 7310.04

. . . .” The memorandum goes on to note that because the SCA

has increased the maximum allowable pre-release community

corrections placement period to 12 months, BOP staff must

review inmates for pre-release community corrections placements earlier than before, 17-19 months prior to their projected release dates. Further, it reminds staff that inmates

must be individually considered for pre-release placements in

community corrections facilities and that this individual consideration must be based on the criteria set forth in § 3621(b).

Quoting § 3624(c)(6)(C), the April 14 Memorandum also

notes that the SCA requires staff to ensure that pre-release

placements in community corrections facilities are “of sufficient duration to provide the greatest likelihood of successful

reintegration to the community,” emphasizing that “[t]his

means Bureau staff must approach every individual inmate’s

assessment with the understanding that he/she is now eligible

for a maximum of 12 months pre-release RRC placement.”

Accordingly, the memo cautions that provisions in Program

Statement 7310.04 reflecting “any other possible maximum

timeframe must be ignored.” However, the April 14 Memorandum also notes that

[w]hile the Act makes inmates eligible for a maximum of 12 months pre-release RRC placements,

Bureau experience reflects inmates’ pre-release RRC

needs can usually be accommodated by a placement

of six months or less. Should staff determine an

inmate’s pre-release RRC placement may require

greater than six months, the Warden must obtain the

Regional Director’s written concurrence before submitting the placement to the Community Corrections

Manager.

19424 SACORA v. THOMAS
On November 14, 2008, BOP officials issued another memorandum (the “November 14 Memorandum”) which provides

guidance to BOP staff when considering inmate requests for

transfers to RRCs before the final 12 months of the inmate’s

sentence. It notes that “[i]nmates are legally eligible to be

placed in an RRC at any time during their prison sentence[s],”

and that “[s]taff cannot, therefore, automatically deny an

inmate’s request for transfer to a RRC.” Instead, “inmate

requests for RRC placement must receive individualized consideration.” The memorandum further notes that “[t]elling an

inmate that he/she is ineligible for RRC placement is the same

as automatically denying the inmate from even being considered for such placement, and is not in accord with Bureau policy.” However, as in the April 14 Memorandum, the

November 14 Memorandum advises BOP staff that “a RRC

placement beyond six months should only occur when there

are unusual or extraordinary circumstances justifying such

placement, and the Regional Director concurs.”

B. Factual and Procedural Background

Petitioner Sacora, a prisoner at the Federal Correctional

Institution at Sheridan, Oregon (“FCI Sheridan”), filed, pro

se, a petition for writ of habeas corpus challenging the policies by which the BOP made its determinations regarding

community confinement. After counsel was appointed, Sacora

moved for certification of a class of “[a]ll federal prisoners

serving sentences in the District of Oregon who have been or

will be considered for community corrections placement

under 18 U.S.C. §§ 3621(b) and 3624(c).”

The district court found that Sacora met the requirements

for class certification with respect to his claims under

§ 3624(c) and the April 14 Memorandum. It also found, however, that Sacora had not alleged any injury from application

of the November 14 Memorandum or the BOP’s refusal to

exercise its discretion to place him in a RRC prior to the final

12 months of his sentence pursuant to § 3621(b). AccordSACORA v. THOMAS 19425
ingly, the district court certified the class of prisoners injured

by the application of § 3624(c) and the April 14 Memorandum. The court also granted leave either to amend the petition

to allege injuries under § 3621(b) and the November 14 Memorandum, or to identify an additional class representative who

could make such allegations. Subsequently, Petitioners Beaman and Sonobe, also prisoners at FCI Sheridan, sought leave

to intervene and be named as class plaintiffs, alleging injuries

pursuant to § 3621(b) and the November 14 Memorandum.

The district court granted the motion to intervene and certified

the following class:

All federal prisoners serving sentences in the District

of Oregon who have been denied or will be denied

community corrections placement in excess of six

months under 18 U.S.C. § 3624(c) and 18 U.S.C.

§ 3621(b), pursuant to [the April 14 Memorandum,

the November 14 Memorandum,] Program Statement 7310.04, Program Statement 5100.08[5] and 28

C.F.R. § 570.20 et seq.

After Petitioners filed a second amended petition setting

forth all claims of Sacora and the intervening Petitioners, the

district court granted the petition with respect to the BOP’s

formal regulations, 28 C.F.R §§ 570.20-.22, finding that the

BOP’s failure to use notice-and-comment provisions in promulgating those regulations violated the APA, and enjoined

the BOP from considering inmates for placement in RRCs

pursuant to those regulations. The district court denied the

petition in all other respects. Petitioners filed their notice of

appeal the same day.6

5

In its opinion and order granting in part and denying in part the petition

for habeas corpus, the district court noted that Petitioners made no specific

argument concerning Program Statement 5100.08. Accordingly, the district court considered the point abandoned. Petitioners have not challenged

this determination on appeal.

6The BOP did not appeal the district court’s invalidation of the SCA

regulations, 28 C.F.R. §§ 570.20-.22, for failure to comply with the noticeand-comment provisions of the APA. 

19426 SACORA v. THOMAS
II. ANALYSIS

A. Standard of Review

“We review de novo a district court’s decision granting or

denying a petition for a writ of habeas corpus filed pursuant

to [28 U.S.C.] § 2241.” Mora-Meraz v. Thomas, 601 F.3d

933, 939 (9th Cir. 2010) (alteration in the original) (internal

quotation marks omitted). We also review questions of statutory interpretation de novo. See, e.g., Rodriguez v. Smith, 541

F.3d 1180, 1183 (9th Cir. 2008). In addition, “[w]hether an

agency pronouncement is interpretive or substantive is a legal

question that we review de novo.” Mora-Meraz, 601 F.3d at

939 (alteration in the original) (internal quotation marks omitted).

B. The Challenged Policies Are Reasonable

Constructions of 18 U.S.C. §§ 3621(b) and 3624(c)

[1] In reviewing an agency’s interpretation of a statute it

administers, a court must “always” first determine “whether

Congress has directly spoken to the precise question at issue.

If the intent of Congress is clear, that is the end of the matter[.]” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842 (1984). Petitioners contend that, under

§ 3624(c), the SCA unambiguously forecloses the BOP from

presuming that six months of RRC placement is sufficient in

the typical case, because the statute “anticipates that the starting point for community corrections placements be 12 months

. . . .” We disagree.

[2] Although Petitioners are correct that the statute mandates that the BOP’s regulations “ensure that placement in a

community correctional facility . . . is . . . of sufficient duration to provide the greatest likelihood of successful reintegration into the community,” 18 U.S.C. § 3624(c)(6)(C), the

statute also provides that this period is “not to exceed 12

months.” 18 U.S.C. § 3624(c)(1) (emphasis added). In deleSACORA v. THOMAS 19427
gating the authority to the BOP to adopt regulations implementing the SCA, the space between “sufficient duration” and

“12 months” was expressly left to the BOP to fill. The BOP’s

policy — that six months in a RRC constitutes a “sufficient

duration” in most cases, but that each inmate is eligible for a

12-month placement and must be considered for placement in

a RRC on an individual basis — is facially consistent with the

statute.7

[3] If the challenged policies had been adopted pursuant to

the notice-and-comment process, this would be the end of the

inquiry. See United States v. Mead Corp., 533 U.S. 218, 226-

27 (2001) (holding that “administrative implementation of a

particular statutory provision qualifies for Chevron deference

when it appears that Congress delegated authority to the

agency generally to make rules carrying the force of law, and

that the agency interpretation claiming deference was promulgated in the exercise of that authority”); Chevron, 467 U.S. at

843 (“[I]f the statute is silent or ambiguous with respect to the

specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”). However, because Program Statement 7310.04 and the

April 14 Memorandum “do[ ] not purport to carry the force of

law and [were] not adopted after notice and comment,”

8

 they

are not entitled to the level of deference provided for in

7The policy is also consistent with Congress’ purpose in enacting the

SCA 

to assist offenders reentering the community from incarceration

to establish a self-sustaining and law-abiding life by providing

sufficient transitional services for as short of a period as practicable, not to exceed one year, unless a longer period is specifically determined to be necessary by a medical or other

appropriate treatment professional[.] 

42 U.S.C. § 17501(a)(5) (emphasis added). 

8We address the question of whether these pronouncements should have

been promulgated through notice-and-comment procedures below. See

infra, Part II.C.2. 

19428 SACORA v. THOMAS
Chevron. Tablada v. Thomas, 533 F.3d 800, 806 (9th Cir.

2008). Despite not being entitled to Chevron deference, however, the challenged policies are still “entitled to a measure of

deference” under Skidmore v. Swift & Co., 323 U.S. 134

(1944). Tablada, 553 F.3d at 806; see also Reno v. Koray, 515

U.S. 50, 61 (1995) (“It is true that the Bureau’s interpretation

appears only in a ‘Program Statemen[t]’ — an internal agency

guideline . . . [b]ut BOP’s internal agency guideline . . . is still

entitled to some deference.” (first alteration in the original)).

Under Skidmore, “ ‘[t]he weight [accorded to an administrative] judgment . . . will depend 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 power to persuade, if lacking

power to control.’ ” Mead, 533 U.S. at 228 (second alteration

in the original) (quoting Skidmore, 323 U.S. at 140). “Mead

adds as other relevant factors the ‘logic[ ] and expertness’ of

an agency decision, the care used in reaching the decision, as

well as the formality of the process used.” Wilderness Soc’y

v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1068 (9th Cir.

2003) (en banc) (alteration in the original) (quoting Mead,

533 U.S. at 228, 235), amended in part by, 360 F.3d 1374 (9th

Cir. 2004).

[4] Analyzed in light of Skidmore, the BOP’s policies are

reasonable and sufficiently persuasive. The April 14 Memorandum provides that BOP “staff must approach every individual inmate’s assessment with the understanding that he/she

is now eligible for a maximum of 12 months pre-release RRC

placement” and clearly states that “[p]rovisions in [Program

Statement] 7310.04 that reflect any other possible maximum

timeframe must be ignored.”

[5] The April 14 Memorandum does note that “Bureau

experience reflects inmates’ pre-release RRC needs can usually be accommodated by a placement of six months or less.”

The BOP, however, is entitled to use its experience in interSACORA v. THOMAS 19429
preting and administering a statute, as Mead recognizes. See

Mead, 533 U.S. at 228 (noting that the “fair measure of deference to an agency administering its own statute has been

understood to vary with circumstances, and courts have

looked to the . . . [agency’s] relative expertness” in determining whether to grant that deference). Further, the SCA

expressly provides that “[n]othing in [§ 3624(c)] shall be construed to limit or restrict the authority of the Director of the

Bureau of Prisons under section 3621.” 18 U.S.C.

§ 3624(c)(4). Thus, the ultimate point of reference for RRC

placement decisions under § 3624(c) is the set of factors set

forth in § 3621(b), including the resources of the facility contemplated, the nature and circumstances of the offense, and

the history and characteristics of the prisoner. See 18 U.S.C.

§ 3621(b). Given the statutory mandate that the BOP consider

the resources of the facility to which it is considering designating a given prisoner when making placement decisions, it

is not unreasonable for the agency to conserve the resources

of RRCs by applying an extra check on the longest placements in RRCs. In addition, the BOP’s decision to require

unusual circumstances demonstrating a need for longer placements is persuasive given Congress’ expressed purpose in

enacting the SCA “to assist offenders reentering the community from incarceration . . . by providing sufficient transitional

services for as short of a period as practicable.” 42 U.S.C.

§ 17501(a)(5).

[6] As for the regulation’s consistency with earlier pronouncements, ironically, it is Petitioners who argue that the

challenged policies are too consistent with earlier pronouncements, by arguing that the BOP merely continued its previous

rule without making changes Petitioners contend the SCA

requires. The BOP did make changes to the rule, however, to

accommodate the new statutory time frame: after the April 14

Memorandum each inmate’s pre-release placement review

was to take place somewhere between 17 and 19 months

before the inmate’s release, instead of the 11 to 13 months

provided for in Program Statement 7310.04. See Program

19430 SACORA v. THOMAS
Statement 7310.04, at 7. This change affords each inmate the

opportunity to be placed in a RRC for the full 12 months the

statute authorizes, should the circumstances justify it. Similarly, the April 14 Memorandum specifies that BOP staff must

ignore provisions in the Program Statement reflecting any

possible maximum time frame for RRC placement other than

12 months. 

For substantially the same reasons, the similar policy set

forth in the November 14 Memorandum is consistent with

§ 3621(b) and sufficient under Skidmore. Petitioners argue,

however, that the policy as set forth in the November 14

Memorandum is contrary to our decision in Rodriguez v.

Smith, 541 F.3d 1180 (9th Cir. 2008). We disagree.

[7] In Rodriguez, we held that the prior version of the regulations codified at 28 CFR §§ 520.20 and 520.21 was

invalid, because it “categorically exclude[d] inmates from

RRC eligibility without considering the mandatory factors

articulated in § 3621(b).” 541 F.3d at 1187. No such problem

exists here. Although the November 14 Memorandum does

set forth a presumption that RRC placements of longer than

six months should occur only “when there are unusual or

extraordinary circumstances justifying such placement[ ] and

the Regional Director concurs,” the Memorandum also

admonishes BOP staff that they “cannot . . . automatically

deny an inmate’s request for transfer to a RRC” because

“[i]nmates are legally eligible to be placed in an RRC at any

time during their prison sentence[s].” The memorandum also

reminds the BOP staff that they “must individually consider

the request, just as they would any other request for lower

security transfer.” Further, the memorandum reminds the staff

that when they review an inmate’s transfer request, they

should review the five factors set forth in 18 U.S.C. § 3621(b)

that, we noted in Rodriguez, are “mandatory”. Rodriguez, 541

F.3d at 1187. Accordingly, we conclude that the BOP’s policy

as set forth in the November 14 Memorandum does not violate the SCA.

SACORA v. THOMAS 19431
C. The Challenged Policies Were Not Promulgated in

Violation of the APA

1. The BOP’s Determinations Were Not Arbitrary

or Capricious in Violation of 5 U.S.C. § 706

[8] Petitioners also challenge the BOP’s policies under the

APA, 5 U.S.C. § 706, arguing that the policies were promulgated without empirical support and without a sufficiently

articulated rationale. Under § 706, the APA requires courts to

“hold unlawful and set aside agency action, findings, and conclusions found to be[ ] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A).

“Under the arbitrary and capricious standard, our review

. . . is highly deferential, presuming the agency action to be

valid and affirming the agency action if a reasonable basis

exists for its decision.” Crickon v. Thomas, 579 F.3d 978, 982

(9th Cir. 2009) (internal quotation marks omitted).

A reasonable basis exists where the agency considered the relevant factors and articulated a rational

connection between the facts found and the choices

made. Although we may uphold a decision of less

than ideal clarity if the agency’s path may reasonably be discerned, we may not infer an agency’s reasoning from mere silence.

Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008)

(citations omitted) (internal quotation marks omitted).

[9] In this case, the BOP relied on “Bureau experience” to

explain its choice to require unusual circumstances and additional checks before placing prisoners in RRCs for longer

than six months. It may have been preferable for the BOP to

support its conclusions with empirical research.9 However, it

9We note that Congress has required the BOP to make annual reports

to the House and Senate Judiciary Committees of “any . . . information

19432 SACORA v. THOMAS
was reasonable for the BOP to rely on its experience, even

without having quantified it in the form of a study. See, e.g.,

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983) (“Normally, an agency rule would be

arbitrary and capricious if the agency . . . offered an explanation for its decision that runs counter to the evidence before

the agency, or is so implausible that it could not be ascribed

to a difference in view or the product of agency expertise.”

(emphasis added)). The BOP has nearly 10 years of experience in placing inmates in RRCs, at least with respect to periods of six months or less. See Program Statement 7310.04, at

8 (noting that the program went into effect on Dec. 16, 1998).

Although the BOP’s experience with RRC placements of six

months or less may not exactly parallel the issue here, its

experience does provide some basis for understanding of how

placements of varying lengths would affect most inmates.

Accordingly, we cannot say that the BOP’s determination was

arbitrary or capricious. 

2. The Challenged Policies Are Not Substantive

Rules Subject to the Notice-and-Comment

Requirement of 5 U.S.C. § 553

[10] “Under the APA, a federal administrative agency is

required to follow prescribed notice-and-comment procedures

before promulgating substantive rules.” Colwell v. Dep’t of

Health & Human Servs., 558 F.3d 1112, 1124 (9th Cir. 2009);

see 5 U.S.C. § 553. “However, these notice and comment

requirements are not applicable to ‘interpretive rules, general

statements of policy, or rules of agency organization, procedure, or practice.’ ” Mora-Meraz, 601 F.3d at 939 (quoting 5

U.S.C. § 553(b)(3)(A)). Of course, an agency cannot, “under

the guise of interpreting a regulation . . . create de facto a new

that may be useful to the committees in determining if the Bureau is utilizing community corrections facilities in an effective manner.” 18 U.S.C.

§ 3624(c)(5). No such reports are part of the record. 

SACORA v. THOMAS 19433
regulation.” Christensen v. Harris County, 529 U.S. 576, 588

(2000).

We have previously distinguished a “general statement of

policy,” 5 U.S.C. § 553(b), from a substantive rule:

The critical factor to determine whether a directive

announcing a new policy constitutes a rule or a general statement of policy is the extent to which the

challenged [directive] leaves the agency, or its

implementing official[,] free to exercise discretion to

follow, or not to follow, the [announced] policy in an

individual case . . . .

To the extent that the directive merely provides

guidance to agency officials in exercising their discretionary power while preserving their flexibility

and their opportunity to make individualized determination[s], it constitutes a general statement of policy . . . . In contrast, to the extent that the directive

narrowly limits administrative discretion or establishes a binding norm that so fills out the statutory

scheme that upon application one need only determine whether a given case is within the rule’s criterion, it effectively replaces agency discretion with a

new binding rule of substant[ive] law.

Colwell, 558 F.3d at 1124 (quoting Mada-Luna v. Fitzpatrick,

813 F.2d 1006, 1013-14 (9th Cir. 1987)) (all alterations but

the second and the last in the original) (internal quotation

marks omitted). Similarly, we have noted the distinction

between interpretive rules and substantive rules:

“Generally, agencies issue interpretive rules to clarify or explain existing law or regulations so as to

advise the public of the agency’s construction of the

rules it administers.” However, “[i]f a rule is inconsistent with or amends an existing legislative rule,

19434 SACORA v. THOMAS
then it cannot be interpretive.” This is because a rule

that is inconsistent with a rule promulgated subject

to notice and comment would impose new rights or

obligations and would require compliance with the

§ 553 procedures.

Mora-Meraz, 601 F.3d at 940 (alteration in the original)

(internal citations omitted) (quoting Gunderson v. Hood, 268

F.3d 1149, 1154 (9th Cir. 2001)).

[11] The ultimate question is “what did the new [memoranda] do?” Gunderson, 268 F.3d at 1154. As discussed

above, the challenged policies are consistent with the statute.

Further, the policies in the memoranda “merely provide[ ]

guidance to agency officials in exercising their discretionary

power while preserving their flexibility and their opportunity

to make individualized determination[s].” Colwell, 558 F.3d

at 1124 (second alteration in the original) (quoting MadaLuna, 813 F.2d at 1013). The policies provide that in the normal case, six months is sufficient placement in a RRC, but the

policies allow BOP staff to determine what constitutes the

“unusual or extraordinary” circumstances for which six

months is not sufficient. Similarly, the requirement that the

Regional Director approve placements of more than six

months merely assigns a particular official the responsibility

of exercising the authority delegated to the BOP and its Director by statute. Although Petitioners provided statistics suggesting that this language (“unusual or extraordinary

circumstances”) has been interpreted strictly in some regions,

including the BOP’s Western Region (which encompasses

FCI Sheridan), these statistics also indicate that greater numbers of prisoners in other regions have been placed in RRCs

for longer than six months. These regional differences demonstrate that the BOP’s rule allows staff to make individualized

determinations and does not create a new binding rule of substantive law. Accordingly, we conclude that the challenged

policies are not substantive rules; thus, they are not subject to

the notice-and-comment requirements of § 553 of the APA.

SACORA v. THOMAS 19435
III. CONCLUSION

The SCA does not require the BOP to make any placements

in a RRC for longer than six months; the statute affords the

BOP the option to make placements up to 12 months. Because

the agency’s construction is entitled to some deference under

Skidmore, and because the BOP used its experience in placing

prisoners in RRCs in crafting its policies, we conclude that

the policies are based on a reasonable construction of the

SCA. Similarly, although documentation and empirical evidence may be desirable, the BOP permissibly relied on its

experience administering RRC placements in crafting its policies, and those policies are not arbitrary or capricious. Finally,

because the challenged policies are not binding rules, but

instead allow implementing officials to use their discretion in

individual cases, the BOP was not required to promulgate the

policies through the APA’s notice-and-comment procedures.

The judgment of the district court is AFFIRMED.

19436 SACORA v. THOMAS