UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

BRIAN LEE WILSON, 

 Petitioner - Appellant, 

v. 

PAUL A. KASTNER, Warden, 

 Respondent - Appellee. 

No. 09-6060 

(D.C. No. 5:08-CV-00859-HE) 

(D. W.D. Okla.) 

ORDER AND JUDGMENT*

Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.

After examining the briefs and the appellate record, this panel concludes that oral 

argument would not materially assist the determination of this appeal. See Fed. R. App. 

P. 34(a)(2); 10th Cir. R. 34.1(G). This case is submitted for decision without oral 

argument.

 *

 This order and judgment is an unpublished decision, not binding precedent. 10th 

Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. 

It is appropriate as it relates to law of the case, issue preclusion and claim preclusion. 

Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). 

Citation to an order and judgment must be accompanied by an appropriate parenthetical 

notation B (unpublished). Id. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 8, 2010

Elisabeth A. Shumaker 

Clerk of Court

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Brian Lee Wilson, a federal prisoner appearing pro se,1

filed a 28 U.S.C. § 2241 

petition for writ of habeas corpus2

seeking to compel Paul A. Kastner, Warden of the 

Federal Transfer Center in El Reno, Oklahoma, to reconsider his eligibility for enrollment 

in a Residential Drug Abuse Program (RDAP). The district court denied the petition; we 

reverse.3

I. STATUTORY OVERVIEW 

Congress directed the Bureau of Prisons (BOP) to “provide residential substance 

abuse treatment . . . for all eligible prisoners.” 18 U.S.C. § 3621(e)(1)(C). The statute 

defines an “eligible prisoner” as one “who is (i) determined by the Bureau of Prisons to 

have a substance abuse problem; and (ii) willing to participate in a residential substance 

abuse treatment program[.]” Id. § 3621(e)(5)(B). The statute establishes no criteria for 

determining whether an inmate has “a substance abuse problem.” 

The BOP adopted a regulation, which for the relevant time period reads: 

An inmate must meet all of the following criteria to be eligible for the 

residential drug abuse treatment program. 

(1) The inmate must have a verifiable documented drug abuse 

 1

 We liberally construe Wilson’s pro se filings. See Ledbetter v. City of Topeka, 

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). 

2

 Wilson’s habeas petition under § 2241 is appropriate because his challenge 

relates to the execution of his sentence rather than the validity of his conviction. See 

Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000); Hall v. Saffle, 10 Fed. Appx. 

768, 770 (10th Cir. 2001) (unpublished); Miller v. Gallegos, 125 Fed. Appx. 934, 937 

(10th Cir. 2005) (unpublished). Unpublished opinions are not binding precedent. 10th 

Cir. R. 32.1(A). We mention these cases, and those mentioned later in this Order and 

Judgment, as we would opinions from another circuit, persuasive because of their 

reasoned analysis. 

3

 We have jurisdiction to entertain this appeal. 28 U.S.C. §§ 1291, 2253(a). 

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problem. 

(2) The inmate must have no serious mental impairment which 

would substantially interfere with or preclude full 

participation in the program. 

(3) The inmate must sign an agreement acknowledging his/her 

program responsibility. 

(4) Ordinarily, the inmate must be within thirty-six months of 

release. 

(5) The security level of the residential program institution must be appropriate 

for the inmate. 

28 C.F.R. § 550.56(a) (2000).4

 In addition, the BOP issued Program Statement 5330.10 

which discussed the first requirement in more detail.5

 It stated in pertinent part: 

The inmate must have a verifiable documented drug abuse problem. Drug 

abuse program staff shall determine if the inmate has a substance abuse 

disorder by first conducting the Residential Drug Abuse Program 

Eligibility Interview followed by a review of all pertinent documents in the 

inmate’s central file to corroborate self-reported information. The inmate 

must meet the diagnostic criteria for substance abuse or dependence 

indicated in the Diagnostic and Statistical Manual of the Mental Disorders, 

Fourth Edition, (DSM-IV) . . . . 

Additionally, there must be verification in the Presentence Investigation 

(PSI) report or other similar documents in the central file which supports 

the diagnosis. Any written documentation in the inmate’s central file which 

indicates that the inmate used the same substance, for which a diagnosis of 

abuse or dependence was made via the interview, shall be accepted as 

verification of a drug abuse problem. 

(R. Vol. I at 73-74.) The BOP developed “an internal policy/practice” requiring a 

prisoner to have “documentation . . . supporting a claim of substance abuse or 

 4

 This regulation has been amended. The eligibility requirements are currently set 

forth in 28 C.F.R. § 550.53(b) (effective March 16, 2009). 

5

 The version of Program Statement 5330.10 in the record, and on which we rely, 

is dated May 17, 1996. On March 16, 2009, the BOP rescinded Program Statement 

5330.10 and replaced it with Program Statement 5330.11.

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dependence during the twelve-month period immediately preceding incarceration” in 

order to be eligible for RDAP. (Appellee’s Br. at 2.) The BOP does not point us to any 

written documentation reflecting this “internal policy/practice,” though it appears to have 

its origin in a memorandum by Regional Drug Abuse Coordinator Beth Weinman, dated 

October 21, 1996.6

 See Mitchell v. Andrews, 235 F.Supp.2d 1085, 1089 (E.D. Cal. 2001); 

see also Smith v. Vazquez, 491 F.Supp.2d 1165, 1170 (S.D. Ga. 2007) (describing the 

twelve-month-policy as “a ‘practice’ apparently emanating from a BOP official’s 

memorandum”); Rea v. Sniezek, No. 4:06 CV 2424, 2007 WL 427038, *4 (N.D. Ohio 

 6

 The twelve-month-policy is not referenced in Program Statement 5330.10, which 

was in effect during the time relevant to this appeal. By contrast, its successor Program 

Statement 5330.11 specifically refers to the twelve-month period prior to arrest (not 

incarceration) as being the relevant period for determining RDAP eligibility. It states: 

“Upon assignment of a RDAP referral . . . the [Drug Abuse Treatment Specialist] will 

review an inmate’s Central File and other collateral sources of documentation to 

determine if . . . [t]here is verification that can establish a pattern of substance abuse or 

dependence.” PS 5330.11, § 2.5.8(d)(2). It continues: 

When seeking independent verification, examples of other collateral 

documentation that may be used include: 

- Documentation to support a substance use disorder within 

the 12-month period before the inmate’s arrest on his or 

her current offense. 

- Documentation from a probation officer, parole officer, 

social service professional, etc., who has information that 

verifies the inmate’s problem with substance(s) within the 

12-month period before the inmate’s arrest on his or her 

current offense. 

- Documentation from a substance abuse treatment provider 

or medical provider who diagnosed and treated the inmate 

for a substance abuse disorder within the 12-month period 

before the inmate’s arrest on his or her current offense. 

Id. 

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Feb. 2, 2007) (unpublished) (describing the twelve-month-policy as an “unwritten 

policy”). 

II. BACKGROUND 

On October 29, 1999, Wilson began serving consecutive state sentences totaling 

25 years. In August 2000, he pled guilty to a federal grand jury indictment charging him 

with mail fraud and was sentenced to 42 months imprisonment. Wilson completed his 

state sentences on July 17, 2007, and was transferred from the Oklahoma Department of 

Corrections (ODOC) to the custody of the United States Marshal Service to begin serving 

his federal sentence.7

 The BOP conducted a psychological intake screening of Wilson on 

October 12, 2007. At that time, Wilson did not report a history of substance abuse or 

express an interest in participating in a substance abuse treatment program. Wilson later 

expressed such an interest. 

Dr. Y. Tami Yunez interviewed Wilson twice to determine whether he was 

eligible for RDAP. Based on these interviews and a review of available documentation, 

she determined Wilson met the diagnostic criteria for cannabis, amphetamine and 

sedative abuse while he was serving his state sentences, but not during the twelve-month 

period prior to his state incarceration. She concluded Wilson was not eligible for RDAP 

but was eligible to participate in a Non-Residential Drug Abuse Treatment Program 

(NRDAP). 

On August 18, 2008, Wilson filed this § 2241 petition seeking an order directing 

the BOP to reconsider his RDAP eligibility. He claims: (1) the BOP exceeded its 

 7

 Wilson’s projected release date is August 5, 2010. 

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statutory authority by categorically excluding from RDAP inmates who do not have 

documentation of abuse during the twelve-month period prior to incarceration; and (2) 

the BOP cannot look to the twelve-month period prior to incarceration to determine 

RDAP eligibility because the BOP did not promulgate this “rule” in accordance with the 

requirements of the Administrative Procedure Act (APA), 5 U.S.C. § 553. 

In response to Wilson’s petition, the BOP argued Wilson was not eligible for 

RDAP because he did not have a verifiable documented history of substance abuse 

during the twelve-month period prior to incarceration. It explained: 

[B]ecause incarceration is an artificial environment, unlike the community, 

the BOP routinely evaluates the inmate’s frequency of drug use and 

diagnostic data utilizing the 12-month period prior to incarceration, 

including state incarceration. Accordingly, to satisfy the DSM-IV, there 

must be evidence corroborating an inmate’s substance abuse while he was 

residing in the community, and not when he is in a more controlled and yet 

artificial environment such as incarceration. 

(R. Vol. I at 96.) The BOP provided no other justification for its twelve-month-policy; 

nor did it argue Wilson was ineligible to participate in RDAP for some other reason. And 

it did not address Wilson’s argument that it could not rely on the twelve-month-policy 

because the rule was not promulgated in the manner required by the APA. 

The petition was referred to a magistrate judge who issued a report recommending 

Wilson’s petition be denied because the BOP’s policy of looking at the twelve-month 

period prior to incarceration to determine RDAP eligibility was entitled to deference 

under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and 

Lopez v. Davis, 531 U.S. 230 (2001), and was “a reasonable interpretation of the 

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statute.”8

 (R. Vol. I at 130.) She explained: 

Because the DSM-IV dictates that diagnosis of substance abuse is 

dependent upon the existence of certain symptoms during a twelve-month 

period and that remission is dependent upon the absence of those symptoms 

for a twelve-month period unless the subject is in a “controlled 

environment,” it is reasonable for the BOP to look to the twelve-month 

period before a prisoner is incarcerated to determine whether the prisoner 

exhibited the symptoms signaling drug abuse. 

(Id.) The magistrate did not address Wilson’s APA argument. 

Wilson filed written objections to the Report and Recommendation. The district 

judge adopted it over his objections and entered judgment in favor of the Warden. The 

judge observed: “[Wilson’s] participation in the [Non-Residential Drug Abuse Program] 

provides the potential for the same relief as sought by the writ. If, while in the NRDAP, 

BOP personnel determine [he] requires more intensive treatment, he can then be referred 

to the residential program.” (Id. at 143.) Wilson filed a timely notice of appeal. The 

district court permitted Wilson to proceed in forma pauperis (ifp) on appeal.9

III. DISCUSSION 

Wilson now continues the arguments he made to the district court. He contends 

the BOP’s use of the twelve-month period prior to incarceration to determine eligibility 

for RDAP is not a permissible exercise of its discretion in carrying out its obligation to 

provide substance abuse treatment as required by 18 U.S.C. § 3621(e)(1)(C). He also 

 8

 The magistrate acknowledged three federal district courts had found the BOP’s 

interpretation of the statute wanting. 

9

 Wilson filed a renewed motion with this Court. That motion was unnecessary 

because the district court had already granted the requested relief. Accordingly, we do 

not address it here. 

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contends the BOP cannot rely on its twelve-month-policy because it did not properly 

promulgate the “rule.” The BOP argues it acted within its discretion in using the twelvemonth period prior to incarceration to determine RDAP eligibility. Once again, it does 

not address Wilson’s argument under the APA. In § 2241 habeas proceedings, we review 

legal questions de novo and factual findings for clear error. See United States v. 

Eccleston, 521 F.3d 1249, 1253 (10th Cir. 2008). 

“[W]e may not review whether the BOP erred in [Wilson’s] particular case, but 

may only review whether the BOP exceeded its statutory authority in construing [the 

statute].” Hunnicutt v. Hawk, 229 F.3d 997, 1000 (10th Cir. 2000). Wilson contends the 

BOP’s twelve-month-policy “is not entitled to deference because [it] appears nowhere in 

a published [form]. It is merely a practice.” (Appellant’s Opening Br. at 6.) Whether 

Chevron deference is appropriate is a legal question we review de novo. See Eccleston, 

521 F.3d at 1253. 

In Chevron, the Supreme Court said: 

When a court reviews an agency’s construction of the statute which it 

administers, it is confronted with two questions. First, always, is the 

question 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; for the 

court, as well as the agency, must give effect to the unambiguously 

expressed intent of Congress. If, however, the court determines Congress 

has not directly addressed the precise question at issue, the court does not 

simply impose its own construction on the statute, as would be necessary in 

the absence of an administrative interpretation. Rather, if 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. 

467 U.S. at 842-43 (footnotes omitted). The statute here offers no guidance as to how 

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BOP is to determine whether a prisoner has a “substance abuse problem.” Instead, it 

expressly delegates that determination to the BOP. In that regard Chevron instructs: “If 

Congress has explicitly left a gap for the agency to fill, there is an express delegation of 

authority to the agency to elucidate a specific provision of the statute by regulation.” Id.

at 843-44 (emphasis added). We are to afford “controlling weight” to the agency’s 

“legislative regulations . . . unless they are arbitrary, capricious, or manifestly contrary to 

the statute.” Id. at 844 (emphasis added). 

If the BOP’s twelve-month-policy was contained in a regulation, it would be 

entitled to Chevron deference. See Via Christi Reg’l Med. Ctr. v. Leavitt, 509 F.3d 1259, 

1271-72 (10th Cir. 2007). Thus, in Lopez, the Supreme Court held a BOP regulation 

relating to post-RDAP eligibility for early release was “a permissible exercise of the 

Bureau’s discretion . . . .” 531 U.S. at 233. Lopez is inapposite here because the twelvemonth-policy is not contained in a regulation.10

The BOP contends its twelve-month-policy is entitled to deference “even though 

[it] appears only in a Program Statement . . . .” (Appellee’s Br. at 16 (quotations 

omitted).) The BOP is correct to some extent; a Program Statement is entitled to “some 

deference” if it represents a permissible construction of the statute. Reno v. Koray, 515 

U.S. 50, 61 (1995). However, the twelve-month-policy is not contained in a Program 

 10 Some courts, including the district court here, have blessed the BOP’s twelvemonth-policy. Those courts have improperly relied upon Lopez to accord Chevron

deference to a mere policy. See, e.g., Rea v. Sniezek, No. 4:06 CV 2424, 2007 WL 

427038, *5 (N.D. Ohio Feb. 2, 2007) (unpublished); Montilla v. Nash, No. CIVA 05-

2474, 2006 WL 1806414, *3 (D.N.J. June 28, 2006) (unpublished). 

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Statement but is instead merely a policy or practice (perhaps not even formally adopted). 

See Laws v. Barron, 348 F.Supp.2d 795, 804 (E.D. Ky. 2004) (“It is true that in none of 

the provisions in the statute, the regulation, or the program statement, nor in the DSM-IV 

which is referenced therein, does the requirement appear . . . that the documented abuse 

must be in the 12-month period immediately preceding a diagnostic interview, arrest, or 

incarceration.”). 

While the BOP is accorded broad discretion over all aspects of the substance 

abuse treatment program, it must exercise its discretion within the prescribed parameters 

of its statutory authority. See SEC v. Sloan, 436 U.S. 103, 118 (1978) (court must 

determine whether agency’s exercise of discretion is within the scope of its statutory 

authority); see also Downey v. Crabtree, 100 F.3d 662, 666 (9th Cir. 1996) (“[T]he 

Bureau’s endowment of broad discretion does not immunize its decisions from judicial 

review, especially concerning questions of statutory interpretation.”). We do not afford 

Chevron deference to agency pronouncements which lack the force of law. See 

Christensen v. Harris County, 529 U.S. 576, 587 (2000) (“Interpretations such as those in 

opinion letters—like interpretations contained in policy statements, agency manuals, and 

enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style 

deference.”); Via Christi Reg’l Med. Ctr., Inc., 509 F.3d at 1272 (same). 

We will, however, afford the BOP a lesser form of deference under Skidmore v. 

Swift & Co., 323 U.S. 134, 140 (1944). As the Supreme Court explained in United States 

v. Mead Corp., “Chevron did nothing to eliminate Skidmore’s holding that an agency’s 

interpretation may merit some deference whatever its form, given the specialized 

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experience and broader investigations and information available to the agency and given 

the value of uniformity in its administrative and judicial understandings of what a 

national law requires.” 533 U.S. 218, 234 (2001) (quotations and citations omitted). 

Applying Skidmore deference, we afford weight to an agency’s decision “depend[ing] 

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.” Skidmore, 323 U.S. at 140; see also Via Christi Reg’l Med. Ctr., 

Inc., 509 F.3d at 1272. 

The question, then, is whether the BOP’s twelve-month-policy has the “power to 

persuade.” It does not. The BOP contends the rule is based on the DSM-IV, saying: 

“The DSM-IV suggests that if during the twelve months used as the review period, the 

patient is in a controlled environment (such as prison) then the diagnosis and treatment 

may be skewed by the artificial environment.” (Appellee’s Br. at 12-13.) Admittedly, 

the DSM-IV is a principled source and we accept its guidance with respect to a 

potentially skewed diagnosis. The problem lies in the BOP’s interpretation of the 

principles announced. It confuses the criteria for making a substance abuse diagnosis 

with criteria designed to avoid prematurely, and potentially erroneously, concluding a 

documented substance abuse problem is in remission. 

The DSM-IV defines “Substance Dependence” as “[a] maladaptive pattern of 

substance use, leading to clinically significant impairment or distress, as manifested by 

three (or more) of” a cluster of certain listed symptoms occurring at any time in the same 

twelve-month period. DSM-IV-TR at 197. “Substance Abuse” is similarly defined. Id. 

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at 199. It does not specifically define the twelve-month period to be used for a substance 

abuse diagnosis. See Mitchell, 235 F. Supp. 2d at 1090 (“The DSM-IV does not require 

documentation of substance abuse or dependency during the 12-month period 

immediately preceding either a diagnostic interview, arrest, or incarceration.”). The 

DSM-IV also discusses remission of a substance abuse problem and provides different 

diagnostic criteria for “Early Remission” when the subjects are in a controlled 

environment. It defines “Early Remission” as “the first 12-months following 

Dependence or Abuse.” See DSM-IV-TR at 195. It states: “For an individual to qualify 

for Early Remission after . . . release from a controlled environment, there must be a 1-

month period in which none of the criteria for Dependence or Abuse are met.” Id. at 196 

(emphasis added). Examples of a controlled environment include “closely supervised 

and substance-free jails, therapeutic communities, or locked hospital units.” Id. at 197. 

The DSM-IV says nothing about “Early Remission” in subjects who continue to reside in 

a controlled environment. 

The DSM-IV’s differential method of assessing an apparent remission of 

symptoms of substance abuse by individuals in controlled environments clearly assumed 

they do not have access (or at least easy access) to addictive substances while in that 

environment. Accordingly, their resistance to relapse cannot be measured in the same 

way as one without such constraints (and who is, instead, regularly subject to temptations 

from corrupting peers and more readily available substances of abuse). Individuals in 

controlled environments, including prison, should not be considered to be in Early 

Remission (and thus lacking a current “verifiable documented drug abuse problem,” see

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28 C.F.R. § 550.56(a)(1)(2000), until they have demonstrated their resistance in a noncontrolled environment for at least 30 days. But the BOP’s argument (that individuals 

like Wilson, who develop a substance abuse problem while in prison, do not warrant a 

diagnosis of Substance Dependence or Abuse) turns the logical thread of the DSM-IV on 

its head. Any diagnostic skewing caused by the controlled environment of prison would 

relate only to mistakenly identifying an inmate in remission. The absence of credible 

evidence of “Early Remission” in a documented case of substance abuse cannot logically 

or reasonably suggest an inmate has no current substance abuse problem. 

In the conclusion of its appellate brief, without citing any authority, the BOP 

argues: “Allowing prisoner’s [sic] to gain eligibility for the RDAP and its incentive for . . 

. the possibility of as much as a one year reduction [of] the term of incarceration,11

without any time period of evaluation or the use of a time period running during the 

artificial and controlled environment of a prison, is [to] invite abuse of the program.” 

(Appellee’s Br. at 18.) The opportunity for secondary gain is palpable and the BOP must 

attempt to separate the wheat from the chaff. 

The problem, however, is that the statute refers to a current, not a past, substance 

abuse problem and the BOP’s policies must be directed at identifying those prisoners 

with a current substance abuse problem. Moreover, the BOP did not raise this argument 

before the district court and we do not generally consider arguments raised for the first 

 11 See 18 U.S.C. § 3621(e)(2)(B). 

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time on appeal.12 See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 

144, 156 (1991) (“Our decisions indicate that agency ‘litigating positions’ are not entitled 

to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for 

agency action, advanced for the first time in the reviewing court.”).13

Some of the district courts that have upheld the BOP’s twelve-month-policy have 

concluded the rule is reasonable because it focuses attention on the period immediately 

preceding arrest or incarceration, rather than on some earlier time period. For example, 

in Laws, the petitioner claimed he was eligible to participate in RDAP based on alcohol 

abuse which occurred four to nine years before he was arrested. 348 F.Supp.2d at 797. 

The district court denied the petition explaining: 

The requirement that the abuse occurred in the 12-month pre-incarceration 

period of time is explained as consistent with the DSM-IV definition of 

substance abuse. Again, common sense would dictate that entry into the 

most rigorous program would be restricted to those prisoners having a 

recent history of abuse, rather than one who can demonstrate that he had a 

substance abuse problem 4 to 9 years prior to arrest and 7 to 12 years prior 

to incarceration. 

 12 “We are free to affirm the rulings of a district court on any ground that finds 

support in the record . . .” Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1248 (10th Cir. 

2000) (quotations omitted). Though we are inclined to defer to the BOP, the record here 

does not contain any evidence that its policy of looking to the twelve-month period prior 

to incarceration to determine substance abuse reduces abuse of RDAP. 

13 Similarly, 18 U.S.C. § 3621(e)(3)(B) requires BOP to provide an annual report 

to Committees on the Judiciary of the Senate and the House of Representatives including 

“a full explanation of how eligibility for [substance abuse treatment] programs is 

determined . . . .” We recognize “[w]here an agency’s statutory construction has been 

fully brought to the attention of the public and the Congress, and the latter has not sought 

to alter that interpretation although it has amended the statute in other respects, then 

presumably the legislative intent has been correctly discerned.” North Haven Bd. of 

Educ. V. Bell, 456 U.S. 512, 535 (1982). BOP has not advanced this argument and we 

decline to consider it sua sponte. 

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Id. at 805-06 (quotations and citation omitted); see also Dellarcirprete v. Gutierrez, 479 

F. Supp. 2d 600, 605-06 (N.D. W.Va. 2007) (concluding the BOP’s practice of looking to 

the twelve-month period prior to incarceration to determine RDAP eligibility is 

reasonable assuming such period would be the twelve months immediately preceding 

incarceration). 

This same reasoning supports Wilson’s argument here. If the twelve-monthpolicy is reasonable when applied to exclude inmates who lack evidence of recent 

substance abuse, it should not exclude inmates who have evidence of recent abuse merely 

because that substance abuse occurred during a period of incarceration. Had Wilson’s 

abuse occurred prior to his state incarceration (before October 29, 1999), he would 

presumably have been less in need of treatment at the beginning of his federal 

incarceration (July 17, 2007) due to the passage of time in a drug and alcohol free 

environment. 

The BOP may have a legitimate reason for being less tolerant of prisoners who 

develop a substance abuse problem while incarcerated and for requiring them to 

participate in a non-residential program before moving to a residential one,14 the BOP 

does not make those arguments in this case.15 Considering the arguments the BOP does 

 14 The district judge implied (infra at 6) that judicious use of the Non-Residential 

program might be part of the sifting process. Curiously, BOP has not made that 

argument here. Rather than speculate, we assume that was a reasoned choice. 

15 The statute’s directive that the BOP provide residential substance abuse 

treatment to every prisoner with a substance abuse problem must be considered in the 

penetrating light of reality. This directive is, by its terms, “subject to the availability of 

appropriations.” 18 U.S.C. § 3621(e)(1). The BOP must allocate available resources in a 

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make, we are not persuaded its twelve-month-policy is a reasonable exercise of discretion 

under 18 U.S.C. § 3621(e)(1) when categorically applied to inmates such as Wilson.16

We REVERSE the district court’s denial of Wilson’s petition for habeas relief 

and REMAND the case to the district court with instructions to issue a writ requiring the 

BOP to reconsider Wilson’s RDAP eligibility.17

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge 

 

manner best suited to implement Congressional intent; that necessarily calls for an 

exercise of discretion. Perhaps BOP’s challenged policy is a product of fiscal reality, but 

it has not been rationally explained—either here or in the district court. 

16 Because we conclude the twelve-month-policy is not a reasonable exercise of 

the BOP’s discretion and Wilson is entitled to the relief he seeks, we decline to consider 

Wilson’s argument that the BOP cannot rely upon the twelve-month-policy because it 

was not promulgated in accordance with the requirements of the APA. 

17 In reconsidering his eligibility, the BOP might determine Wilson is ineligible to 

participate in RDAP for some other reason. 

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