1 2 4 JS-6 A 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 Case No. CV 20-11264 JLS (MRW 13 | GLEN ADKINS, ase Nf (MRW) Petitioner ORDER DISMISSING ACTION

WITHOUT PREJUDICE

15 Vv. 16 | FELICIA PONCE, Warden, 17 Respondent. 18 19 qe ws The Court summarily dismisses Petitioner’s unripe habeas action 20 without prejudice. 21 **K* 22 woe Lok gee Le 1. Petitioner is a federal prisoner housed in this judicial district. 23 He is serving a lengthy prison term for fraud and money laundering 24 offenses. Petitioner is not projected for release until 2033. (Docket # 6 25 at 5; www.bop.gov/inmateloc.) 26 2. Petitioner filed this habeas corpus action pursuant to 28 U.S.C. 27 § 2241. He wishes to challenge a proposed regulation that the Bureau of 28

1 Prisons is in the process of enacting regarding the recently-passed 2 First Step Act. The proposed regulation may affect the computation of 3 credits Petitioner earns under the Act. Although not entirely clear, 4 Petitioner seems to dispute the procedures and wording of the proposed 5 regulation as inconsistent with the statute. (Docket # 1 at 2-8.) 6 3. Petitioner’s action is premature. The proposed regulation has 7 not been enacted and may not have any impact on the ultimate calculation 8 of his release from prison. Consistent with rulings from district courts 9 around the nation, this Court must dismiss this challenge as unripe. 10 The First Step Act 11 4. The First Step Act of 2018 reformed various aspects of the 12 federal prison system. Of relevance here, the Act created a system of 13 “earned time credits” (distinct from the “good time” credit system). A 14 prisoner can earn credits toward early release when she or he “successfully 15 completes evidence-based recidivism reduction programming or productive 16 activities.” 18 U.S.C.A. § 3632(d)(4). 17 5. The First Step Act established deadlines for the development 18 and implementation of its new credit system. The first key deadline 19 (July 19, 2019) involved the creation of a “risk and needs assessment 20 system” to “review each prisoner's recidivism risk level, award earned time 21 credit as an incentive for participation in recidivism reduction 22 programming, and ‘determine when a prisoner is ready to transfer into 23 prerelease custody or supervised release in accordance with section 3624.’” 24 Bottinelli v. Salazar, 929 F.3d 1196, 1197-98 (9th Cir. 2019) (quotation 25 omitted). The Attorney General met that deadline. Id. at 1198. 26 27 28 1 6. Second, by January 2020, the BOP was to “complete the initial 2 intake risk and needs assessment of each prisoner,” and “begin to expand” 3 programming and incentives. 18 U.S.C. § 3621(h). 4 7. Finally, the BOP is to fully implement the earned time credit 5 system so that “every prisoner has the opportunity to participate in and 6 complete” assigned and eligible programming. The deadline for this 7 implementation is January 15, 2022. Id. 8 First Step Act Proposed Regulations and Petitioner’s 9 Challenge 10 8. The BOP published a proposed rule in November 2020, titled 11 “FSA Time Credits.” 85 FR 75268-01. The rule “would codify the 12 procedures for earning, awarding, losing, and restoring time credits earned 13 under the FSA for successful completion of” recidivism reduction programs. 14 (Docket # 6 at 7 (citing the Proposed Rule).) The proposed rule closed for 15 comments on January 25, 2021. (Id.) The regulatory analysis of the 16 proposed rule includes a link to a list of programs that qualify for earned 17 time credit. That list comprises the “Approved Programs Guide.” 18 9. The Approved Programs Guide lists “all approved [evidence- 19 based recidivism reduction programming and productive activities], 20 including their descriptions, as well as setting forth the locations at which 21 they are available and the number of hours that can be earned by 22 participating in and completing them.” Beauchamp v. Bradley, No. CV 20- 23 11295 GJS, 2021 U.S. Dist. LEXIS 31472 at *8-9 (C.D. Cal. 2021). 24 10. A review of the Federal Register and the Westlaw online 25 database reveals that the BOP has not enacted a final rule on this topic to 26 date. 27 28 1 11. Broadly read, Petitioner’s pleadings suggest that, under the 2 proposed regulations, he is concerned that he may not retroactively qualify 3 for the amount of earned time credits to which Petitioner believes he is 4 entitled. (Docket # 1 at 2-4.) That, in turn, could potentially affect the date 5 of Petitioner’s future release from custody. He also challenges aspects of 6 the specific programs identified on the Approved Programs Guide. 7 Relevant Law 8 12. A federal court is “limited to deciding ‘cases’ and 9 ‘controversies.’” Bova v. City of Medford, 564 F.3d 1093, 1095 (9th Cir. 10 2009) (quoting U.S. Const. Art. III § 2). Ripeness is a component of the 11 Article III requirement. Id. at 1096. 12 13. “Ripeness is a justiciability doctrine designed to prevent the 13 courts, through avoidance of premature adjudication, from entangling 14 themselves in abstract disagreements over administrative policies, and also 15 to protect the agencies from judicial interference until an administrative 16 decision has been formalized and its effects felt in a concrete way by the 17 challenging parties.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 18 803, 807-08 (2003) (cleaned up). “A claim is not ripe for adjudication if it 19 rests upon contingent future events that may not occur as anticipated, or 20 indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 21 (1998) (cleaned up). 22 14. Whether an administrative action is ripe for judicial review 23 requires a court “to evaluate (1) the fitness of the issues for judicial 24 decision and (2) the hardship to the parties of withholding court 25 consideration.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808. When challenging 26 a regulation, the “finality” of the administrative action weighs in favor of 27 28 1 judicial review. Abbott Laboratories v. Gardner, 387 U.S. 136, 149-50 2 (1967). 3 Analysis 4 15. Petitioner’s claims are not ripe for challenge in court. The 5 proposed materials that Petitioner challenges (the November 2020 6 proposed rule and the Approved Programs Guide) are just that – proposed. 7 As the government correctly points out, the BOP is “in the midst of the 8 rulemaking process with respect to the time credits under the FSA.” 9 (Docket # 6 at 11.) The final regulation “rests upon contingent future 10 events” as the rule is reviewed and implemented. Texas, 523 U.S. at 300. 11 As such, the proposed regulations claims are premature and unfit for 12 judicial review. Abbott Laboratories, 387 U.S. at 149-50; Nat’l Park Hosp. 13 Ass’n, 538 U.S. at 808. 14 16. Furthermore, the First Step Act allows the BOP until January 15 2022 to phase in the system for establishing programming that is eligible 16 for earned time credits. 18 U.S.C. § 3621(h). That includes establishing 17 the procedures to administer the program. Petitioner’s challenges to the 18 proposed regulations (designed to codify the procedures for awarding 19 earned time credits) are not ripe for review. Nat’l Park Hosp. Ass’n, 538 20 U.S. at 808. 21 17. Numerous federal courts throughout the country that have 22 addressed similar inmate challenges to the proposed rules have uniformly 23 come to the same conclusion – the claims are unripe. See, e.g., Cohen v. 24 United States, 2021 WL 1549917 at *3 (S.D.N.Y. April 20, 2021); Hand v. 25 Barr, 2021 WL 392445 at *4 (E.D. Cal. Feb. 4, 2021); Matecki v. Thompson, 26 2021 WL 2457691 at *3 (E.D. Cal. June 16, 2021); Khouanmany v. 27 28 1 | Carvajal, 2021 WL 2186218 at *6-7 (N.D. Cal. May 28, 2021); Diaz v. FCI- 2 | Ray Brook, 2021 WL 3032694 at *2 (N.D.N.Y. July 19, 2021).! 3 18. The Court concludes that Petitioner’s challenge to the BOP’s 4 | proposed rule is not ripe for judicial review. Therefore, the present action 5 | is DISMISSED without prejudice. 6 IT IS SO ORDERED.

9 | Dated: August 17, 2021 10 HON. JOSEPHINE L. STATON

UNITED STATES DISTRICT JUDGE

11 Presented by: 13 14 Lf [ 15 __,z

HON. MICHAEL R. WILNER

16 | UNITED STATES MAGISTRATE JUDGE 17 18 19 20 | —— Ss 1 Like most prisoners bringing similar cases, Petitioner cites to 21 | Goodman v. Ortiz, 2020 WL 5015613 (D.N.J. 2020). The Goodman Court determined that the prisoner was entitled to immediate earned time credits even 22 | though the phase-in period was ongoing. Id. at *6. To reach this conclusion, the court stated that there was “no evidence in the statutory framework for delaying 23 | application of incentives earned by all prisoners during the phase-in” period. Id. 24 Federal courts have generally declined to adopt the reasoning of Goodman. They note that the statute “pointedly does not require” awarding 25 | earned time credits before the implementation of to-be-determined regulations. Diaz, 2021 WL 3032694 at *3 (quoting Cohen); Hand, 2021 WL 392445 at *4. 26 | Moreover, the gist of Goodman’s challenge was to the existence of the phase-in period for the new risk-and-needs assessment system contained in the statute, 27 | not specific (and unenacted) regulations to administer it. Goodman, 2020 WL 5015613 at *2-3. Goodman does not impact Petitioner’s challenge in the current 28 | action.