Paulsen

concurring.

I concur in the opinion of the court. The last time this consolidated appeal was before us, I wrote separately to observe a tension in our case law over the application of the Administrative Procedures Act (“APA”) to a Bureau of Prison’s Program Statement. See Grier v. Hood, 46 Fed.Appx. 433, 440 (9th Cir.2002) (Beezer, J., concurring). I write separately once again to note that this tension remains unresolved.

I

This court’s invalidation of the Bureau’s 1997 interim regulation marks the culmination of a series of challenges to the Bureau’s actions that year concerning prisoner eligibility for an early release program. The Bureau detailed the eligibility criteria for this program in two separate documents, issued within a week of each other in 1997. See Gunderson v. Hood, 268 F.3d 1149, 1151 (9th Cir.2001). The documents consisted of an interim regulation and a new Program Statement. Prisoners have been arguing with the Bureau over the validity of these documents, which the government on appeal refers to collectively as the “1997 interim rule,” ever since.

The first challenges to the 1997 interim rule were on substantive grounds. Prisoners argued that the Bureau…

We consider in this appeal whether the Bureau of Prisons (“Bureau”) violated the Administrative Procedure Act (“APA”) in adopting an interim regulation pertaining to an early release incentive program for federal prisoners who had successfully completed a substance abuse program. We conclude that the district court correctly held that the Bureau violated the APA, and that the petitioners were entitled to relief.

I

This appeal is the latest chapter in a series of cases concerning a program created by Congress for the purpose of supplying substance abuse treatment to prisoners. In 1990, faced with a burgeoning federal prison population incarcerated for drug-related offenses and evidence that prison substance abuse treatment programs sharply reduce recidivism, Congress required the Bureau to “make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.” Crime Control Act of 1990, Pub.L. 101-647, § 2903 , 104 Stat. 4789 , 4913 (codified as amended at 18 U.S.C. § 3621 (b)). Concerned by an apparent lack of program interest, Congress amended the statute in 1994 to provide federal prisoners with…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARENCE I. PAULSEN, III, 

Petitioner-Appellee, No. 03-35337 v.  D.C. No. CHARLES A. DANIELS, Warden, of CV-99-01746-HA FCI Sheridan, Respondent-Appellant. 

JEFFREY D. PULLINS, 

Petitioner-Appellee, No. 03-35360 v.  D.C. No. CHARLES A. DANIELS, Warden, CV-00-00174-HA Respondent-Appellant. 

DENNIS W. BOHNER, 

Petitioner-Appellee, No. 03-35356 v.  D.C. No. CHARLES A. DANIELS, Warden, CV-99-01116-ALH Respondent-Appellant. 

RANDOLPH BROWN, 

Petitioner-Appellee, No. 03-35355 v.  D.C. No. CHARLES A. DANIELS, Warden, CV-01-01250-ALH Respondent-Appellant.  7585 7586 PAULSEN v. DANIELS

JEREMY E. JAMES, 

Petitioner-Appellee, No. 03-35354 v.  D.C. No. CHARLES A. DANIELS, Warden, CV-99-00872-ALH Respondent-Appellant. 

KARLOS LAMAR GRIER, …