FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM KITTEL,  No. 09-35630

Petitioner-Appellant, D.C. No.

v. 3:07-cv-00851-KI 

J. E. THOMAS, ORDER AND

Respondent-Appellee. AMENDED

OPINION 

Appeal from the United States District Court

for the District of Oregon

Garr M. King, Senior District Judge, Presiding

Submitted June 11, 2010*

Portland, Oregon

Filed July 2, 2010

Amended September 7, 2010

Before: David R. Thompson and M. Margaret McKeown,

Circuit Judges, and Robert J. Timlin,

Senior District Judge.**

Opinion by Judge McKeown

*The panel unanimously concludes this case is suitable for decision

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

**The Honorable Robert J. Timlin, United States District Judge for the

Central District of California, sitting by designation. 

13461
COUNSEL

Stephen R. Sady and Lynn Deffebach, Office of the Federal

Public Defender, District of Oregon, Portland, Oregon, for the

petitioner-appellant.

Suzanne A. Bratis, United States Attorney’s Office, District

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

ORDER

The Opinion filed July 2, 2010, slip op. 9507, and appearing at 610 F.3d 1115, is amended as follows:

At slip op. 9512, at the end of the first paragraph, after the

cite to Pacheco-Camacho v. Hood, insert the following: “See

also Reynolds v. Thomas, 603 F.3d 1144 (9th Cir. 2010) (citing Gunderson and Mujahid and considering the live, justiciable question of whether the BOP erred in denying petitioner’s

request for nunc pro tunc designation of the Montana state

prison as the facility for the service of his federal sentences).”

With this amendment, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing

en banc and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35.

KITTEL v. THOMAS 13463
The petition for panel rehearing and the petition for rehearing en banc are denied. No future petitions for rehearing or

rehearing en banc will be entertained.

OPINION

McKEOWN, Circuit Judge:

William Kittel, a federal prisoner incarcerated in Oregon,

filed a pro se federal habeas petition under 28 U.S.C. § 2241.

He challenges a Bureau of Prisons (“BOP”) rule that categorically excludes from an early release incentive program prisoners whose offenses of conviction involved firearms

possession. The district court dismissed his habeas petition as

moot in light of Arrington v. Daniels, 516 F.3d 1106 (9th Cir.

2008), relying in part on Burkey v. Marberry, 556 F.3d 142

(3d Cir. 2009). We affirm the district court’s dismissal of Kittel’s habeas petition.

BACKGROUND

The BOP has statutory authority to grant a sentence reduction of up to a year to an inmate convicted of a nonviolent felony upon the inmate’s successful completion of the

Residential Drug Abuse Program (“RDAP”). 18 U.S.C.

§ 3621(e)(2)(B). Under a final rule promulgated in 2000, the

BOP categorically excluded from this early release initiative

inmates whose offense of conviction included weapons possession or use. 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000). Kittel

was found eligible to participate and did participate in the

RDAP, but the BOP, relying on the 2000 rule, denied him the

early release benefit because his offense of conviction

included weapons possession. 

Kittel filed a habeas petition on June 7, 2007, to challenge

the BOP’s denial of his eligibility for early release. The dis13464 KITTEL v. THOMAS
trict court dismissed his petition, but while on appeal, we

decided Arrington, which involved a procedural challenge to

the 2000 rule by a group of inmates. In these consolidated

cases, we ultimately held that the 2000 rule was procedurally

invalid under the Administrative Procedure Act (“APA”)

because the BOP did not adequately provide a rationale for

the adoption of the rule. 516 F.3d at 1114. Although Kittel’s

habeas petition was pending at the time of Arrington, his case

was not part of the consolidated Arrington cases.

Kittel completed RDAP on March 24, 2008, just over a

month after Arrington was decided. Ten days after Kittel’s

completion of RDAP, the BOP reconsidered Kittel’s case in

light of Arrington and found him eligible for early release. As

a result, Kittel was sent to a halfway house to complete

RDAP’s transitional component. 

On July 22, 2008, we granted Kittel’s request to remand his

case to the district court for it to consider his petition in light

of Arrington. Kittel was then transferred to home confinement, and the BOP moved to dismiss Kittel’s petition as

moot. The BOP released Kittel from its custody on October

28, 2008. On November 20, 2008, the district court granted

the BOP’s motion to dismiss the petition as moot, but upon

a motion for reconsideration, the court determined that it had

erred and reopened the case. After oral argument, the district

court again held that it was “undisputed” that Kittel had “suffered an actual injury traceable to the BOP,” and he had only

received partial relief. Nonetheless, the court dismissed Kittel’s habeas petition as moot, noting that the remedy he

sought “would simply reiterate a fact that is not in dispute—

that petitioner was initially wrongfully denied eligibility for

early release benefits,” and that there was no effective relief

it could grant.

ANALYSIS

The Constitution limits the jurisdiction of the federal courts

to live cases and controversies, and as such, federal courts

KITTEL v. THOMAS 13465
may not issue advisory opinions. U.S. CONST., art. III; Flast

v. Cohen, 392 U.S. 83, 96 (1968). “Failure to satisfy Article

III’s case-or-controversy requirement renders a habeas petition moot.” Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir.

2005) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)). 

Kittel maintains that his action is not moot, because under

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

Mujahid, the possibility exists that his term of supervised

release could be reduced upon a motion under 18 U.S.C.

§ 3583(e). Kittel received only a partial remedy in the form of

a reduction of seven months of his sentence, so he asserts that

he was wrongfully incarcerated for up to five extra months

based on the BOP’s initial denial of his eligibility for early

release upon completion of RDAP. He argues that a favorable

ruling from this court on the wrongfulness of the BOP’s initial

denial of eligibility for the early release benefit would “provide a predicate for a § 3583(e) motion” to reduce his term of

supervised release. 

[1] Kittel correctly states that in both Gunderson and

Mujahid, we ruled that a suggestion of mootness is defeated

by the “ ‘possibility’ that [the petitioner] could receive a

reduction in his term of supervised release under 18 U.S.C.

§ 3583(e)(2).” Mujahid, 413 F.3d at 995 (quoting Gunderson,

268 F.3d at 1153). This case, however, is distinguishable,

because in both Gunderson and Mujahid, there remained a

live, justiciable question on which the parties disagreed and

on which we ruled. In Gunderson, the petitioner disputed the

legality of a BOP program statement under the APA. 268 F.3d

at 1150. We held that the program statement was a valid interpretive rule. Id. at 1154. In Mujahid, the petitioner challenged

the BOP’s interpretation of the maximum good time credit a

federal prisoner could receive under 18 U.S.C. § 3624(b). 413

F.3d at 993, 996. We held that the BOP’s interpretation was

reasonable and subject to deference. Id. at 995 (citing

Pacheco-Camacho v. Hood, 272 F.3d 1266, 1270 (9th Cir.

2001). See also Reynolds v. Thomas, 603 F.3d 1144 (9th Cir.

13466 KITTEL v. THOMAS
2010) (citing Gunderson and Mujahid and considering the

live, justiciable question of whether the BOP erred in denying

petitioner’s request for nunc pro tunc designation of the Montana state prison as the facility for the service of his federal

sentences).

[2] Here, the legal dispute raised in Kittel’s petition—the

validity of the 2000 rule—was conclusively resolved by

Arrington. What Kittel seeks is a protective ruling as to the

applicability of Arrington to his case in order to support a

future § 3583(e) motion for a reduction in his term of supervised release. Although Kittel fears that the government may

argue before the sentencing court that Arrington is somehow

not good law, Arrington is currently binding authority in the

Ninth Circuit, and our role is not to provide a belt-andsuspenders opinion on a downstream controversy. As the district court noted, an order stating that Arrington applies to

Kittel “would simply reiterate a fact that is not in dispute.”

Unlike in Gunderson and Mujahid, this case involves no live

controversy, which renders Kittel’s petition moot. As the district court stated, after Arrington, “there is nothing remaining

for this court to decide.”

1

PETITION DISMISSED.

1Although the district court correctly determined that Kittel’s petition

was moot, it was not proper to predicate that discussion on non-binding,

out-of-circuit authority, Burkey v. Marberry, 556 F.3d 142, 149-51 (3d

Cir. 2009), which explicitly rejects the reasoning of the Ninth Circuit in

Mujahid. See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)

(stating that a district court must follow case law from its own circuit). 

KITTEL v. THOMAS 13467