Serrato v. Clark ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORA LUZ SERRATO, 
Petitioner-Appellant, No. 06-15167
v.
 D.C. No.
CV-05-03416-CRB
SCHELIA A. CLARK; HARLEY G.
LAPPIN, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
December 6, 2006—Portland, Oregon
Filed May 9, 2007
Before: Jerome Farris, Richard R. Clifton, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
5367
5370 SERRATO v. CLARK
COUNSEL
Stephen R. Sady, Federal Public Defender, Portland, Oregon,
argued the cause for the appellant.
Andrew Y.S. Cheng, United States Attorney’s Office, San
Francisco, California, argued the cause for the appellee.
Kevin V. Ryan and Joann Swanson, United States Attorney’s
Office, San Francisco, California, were on the briefs.
OPINION
BEA, Circuit Judge:
We are called upon to decide whether the Federal Bureau
of Prisons (“BOP”) improperly terminated its early-release
correctional program for penal inmates known variously as
the shock incarceration program, intensive confinement center
or ICC program, and boot camp (hereinafter, “boot camp”).
Boot camp was established to provide a highly regimented
schedule with strict discipline and physical training for
inmates. By promoting personal development, self-control,
and discipline, the program aimed to reduce recidivism and
control prison populations and costs. Upon successful com-
pletion of the program, inmates were eligible to have BOP
reduce their sentence by up to six months. In 2004, citing
budgetary constraints and a study which showed the program
SERRATO v. CLARK 5371
ineffective to reduce recidivism, BOP terminated the pro-
gram.
Before the boot camp program was terminated, Nora Luz
Serrato pleaded guilty to, and was convicted of, possession of
methamphetamine with intent to distribute. Serrato wanted to
attend boot camp. At sentencing, the judge recommended that
Serrato be placed in the program. BOP informed the judge
that Serrato’s initial sentence was too long for her to be
placed directly in the program, so the judge reduced her sen-
tence to make Serrato eligible for direct placement to boot
camp. Serrato reported to prison on November 5, 2004, and
shortly thereafter requested transfer to boot camp. She was
soon informed that the program had been terminated and that
no such transfer was possible. Faced with the prospect of los-
ing the six-month sentence reduction boot camp held out, Ser-
rato filed a petition for writ of habeas corpus, claiming BOP’s
decision to terminate boot camp violated the Administrative
Procedure Act (“APA”), the separation of powers, the prohi-
bition on Ex Post Facto punishment, and our holdings on
retroactive agency action. The district court denied Serrato’s
petition. We have jurisdiction under 28 U.S.C. § 1291 and
affirm.
Background
I. Federal Boot Camp
In 1990, Congress passed 18 U.S.C. § 4046, “Shock incar-
ceration program,” which provides:
(a) The Bureau of Prisons may place in a shock
incarceration program any person who is sentenced
to a term of imprisonment of more than 12, but not
more than 30, months, if such person consents to that
placement.
(b) For such initial portion of the term of imprison-
ment as the Bureau of Prisons may determine, not to
5372 SERRATO v. CLARK
exceed 6 months, an inmate in the shock incarcera-
tion program shall be required to —
(1) adhere to a highly regimented sched-
ule that provides the strict discipline, physi-
cal training, hard labor, drill, and ceremony
characteristic of military basic training; and
(2) participate in appropriate job training
and educational programs (including liter-
acy programs) and drug, alcohol, and other
counseling programs.
(c) An inmate who in the judgment of the Director
of the Bureau of Prisons has successfully completed
the required period of shock incarceration shall
remain in the custody of the Bureau for such period
(not to exceed the remainder of the prison term oth-
erwise required by law to be served by that inmate),
and under such conditions, as the Bureau deems
appropriate.
See Crime Control Act of 1990, Pub. L. No. 101-647, § 3001
(1990), 104 Stat. 4789, 4915. Under 28 C.F.R. § 524.32, an
inmate who successfully completes the program is eligible to
have BOP reduce his or her sentence by up to six months.1
Regulations provide that designation of inmates to boot camp
was to be made “in accordance with sound correctional judg-
ment and the availability of Bureau resources.” Id. § 524.31.
Notably, congressional appropriations for the federal prison
1
According to a 1999 BOP Program Statement, an inmate with a 30-
month sentence would serve the sentence in three phases totaling around
24 months: six months in the institutional phase, or actual boot camp pro-
gram that takes place in prison; four to six months in a community correc-
tions center; and roughly a year of home confinement. U.S. Dep’t of
Justice, Fed. Bureau of Prisons, Program Statement 5390.08 at 9-13, avail-
able at http://www.bop.gov/policy/progstat/5390_008.pdf (last visited
Apr. 13, 2007).
SERRATO v. CLARK 5373
system did not earmark or allocate specific funds for boot
camp. See, e.g., Consolidated Appropriations Act, 2004, Pub.
L. No. 108-199, 118 Stat. 3, 53-55.
Boot camp was terminated in late 2004. The decision was
communicated in a January 5, 2005, “Message to All Staff”
signed by Respondent BOP Director Harley G. Lappin. The
memorandum stated that, due to budget pressures and
research showing that boot camp did not reduce recidivism,
BOP was terminating the program. Director Lappin sent a let-
ter on January 14, 2005, to federal judges, chief United States
probation officers, federal public defenders, and United States
Attorneys stating the same. Director Lappin also noted in the
letter that inmates currently enrolled in the program could
complete it and remain eligible for early release benefits, but
that no new classes would be offered.
II. Serrato’s Appeal
Serrato pleaded guilty to a federal count of possession of
methamphetamine with intent to distribute, on May 5, 2003,
in the United States District Court for the District of Oregon.
She did not have a plea agreement. District Judge Anna
Brown sentenced Serrato to 37 months imprisonment with
five years supervised release on October 17, 2003, and recom-
mended that BOP consider Serrato’s eligibility for boot camp.
One month later, on November 17, 2003, BOP Regional
Director Robert Haro wrote to Judge Brown “to provide des-
ignation information in response to the Court’s recent recom-
mendation that Ms. Nora Luz Serrato be placed at a Bureau
of Prisons facility where she can participate in the Intensive
Confinement Center (ICC) program.” The letter stated that
although Serrato had been classified as a minimum security
level offender, BOP would not directly place Serrato in boot
camp because her sentence exceeded the range of 12 to 30
months required for direct placement to boot camp. Rather,
Serrato would be designated to the minimum security prison
5374 SERRATO v. CLARK
at the Federal Correctional Institution (FCI) in Dublin, Cali-
fornia, and would be reviewed for transfer to boot camp when
she was 24 months from release. See 28 C.F.R. § 524.31.
Judge Brown then resentenced Serrato on September 10,
2004, to 30 months imprisonment with five years supervised
release, and again recommended that BOP consider eligibility
for boot camp.
BOP records did not accurately reflect Serrato’s resentenc-
ing, however, and she was designated to report not to a fed-
eral prison with a boot camp facility, but to the FCI in Dublin,
located in the Northern District of California. Serrato surren-
dered on November 5, 2004. Upon arrival, Serrato requested
to be transferred to boot camp. Case Worker Linda Rodriguez
informed Serrato that a Program Review would be scheduled
in a few weeks. Rodriguez met with Serrato on November 17,
2004, and informed Serrato she “may be eligible” for boot
camp. On November 22, 2004, Rodriguez learned that boot
camp was being closed and no referrals were to be made, and
she informed Serrato of the same.
On April 7, 2005, Serrato filed a motion to enforce the
judgment or to grant 28 U.S.C. § 2255 habeas relief in the
District of Oregon, where she had been sentenced. Judge
Brown acknowledged that she had resentenced Serrato
because of Regional Director Haro’s letter: “[T]he Director
advised Serrato would not be considered for transfer to boot-
camp until she was 24 months from release. On September
10, 2004, therefore, the Court resentenced Serrato to 30
months imprisonment and amended its Judgment according-
ly.” The court, however, denied Serrato’s motion on the
grounds that Serrato’s sentence was lawful and that claims
related to the terms of Serrato’s incarceration were properly
brought only in the custodial court, the Northern District of
California.
On August 23, 2005, Serrato filed a federal habeas petition
in the Northern District of California, where she was incarcer-
SERRATO v. CLARK 5375
ated, claiming the government violated the statutory and con-
stitutional provisions at issue in the present appeal. In a
memorandum and order dated December 19, 2005, District
Judge Charles Breyer held that Serrato had standing and
denied the petition on the merits. The court held that BOP’s
termination of boot camp was within its statutory discretion
and not reviewable under the APA, that the termination did
not violate the APA’s notice and comment procedures, and
that the termination violated neither the Constitution’s Ex
Post Facto Clause, nor the retroactivity doctrine, nor the sepa-
ration of powers. Judgment was entered the same day,
December 19, 2005. Serrato filed this timely appeal January
17, 2006.
In the meantime, BOP had placed Serrato under consider-
ation for a state boot camp program. On or around December
20, 2005, Serrato began a state boot camp program in Wis-
consin. At that point, Serrato had already spent over a year in
prison.
On January 4, 2006, Serrato filed a Federal Rule of Civil
Procedure 60(b) motion in the District of Oregon to reopen
her § 2255 motion. The district court reduced Serrato’s term
of supervised release from five to four years, and otherwise
denied the motion. That decision is the subject of United
States v. Serrato, No. 06-35274, a related appeal decided in
a memorandum disposition filed contemporaneously with this
opinion.
Serrato completed the state boot camp program and was
transferred to a community corrections center in Oregon on or
around June 20, 2006. She spent over 19 months in prison.
Serrato was released from custody into supervised release
July 20, 2006.
Standard of Review
The court reviews the district court’s denial of a petition for
writ of habeas corpus de novo. See Leavitt v. Arave, 383 F.3d
5376 SERRATO v. CLARK
809, 815-16 (9th Cir. 2004) (per curiam). “To the extent it is
necessary to review findings of fact made in the district court,
the clearly erroneous standard applies.” Id. at 815 (citation
and internal quotation marks omitted).
Discussion
I. Mootness and Standing
Serrato brought her habeas petition in the Northern District
of California, where she was incarcerated at the time. She has
since been released from prison and entered supervised
release in the District of Oregon. The question thus arises
whether the present appeal is moot.
[1] We conclude the appeal is not moot. It seeks relief in
the form of reduction of Serrato’s supervised release. See
Mujahid v. Daniels, 413 F.3d 991, 994-95 (9th Cir. 2005)
(holding appeal not moot despite intervening release of
inmate into supervised release because court could reduce
period of supervised release); see also Gunderson v. Hood,
268 F.3d 1149, 1153 (9th Cir. 2001). Because 18 U.S.C.
§ 3583(e)(2)2 gives the sentencing court the power to reduce
a term of supervised release, and because Serrato followed
proper habeas procedure in naming as respondent the warden
of the prison where she was incarcerated, Serrato’s appeal is
not moot. See United States v. Johnson, 529 U.S. 53, 60
(2000); Mujahid, 413 F.3d at 994-95.
2
This section provides:
The court may, after considering the factors set forth in section
3553(a) . . . extend a term of supervised release if less than the
maximum authorized term was previously imposed, and may
modify, reduce, or enlarge the conditions of supervised release,
at any time prior to the expiration or termination of the term of
supervised release . . . .
18 U.S.C. § 3583(e) & (e)(2).
SERRATO v. CLARK 5377
A closer question is whether Serrato has Article III stand-
ing to bring the present appeal.
To satisfy Article III’s standing requirements, a
plaintiff must show (1) she has suffered an “injury in
fact” that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Wilbur v. Locke, 423 F.3d 1101, 1107 (9th Cir. 2005) (inter-
nal quotation marks omitted). For an injury to be “particular-
ized,” it “must affect the plaintiff in a personal and individual
way.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1
(1992). The district court concluded Serrato had standing to
challenge BOP’s termination of boot camp because boot camp
cancellation created a cognizable and concrete injury in fact
that could be redressed by the court. The district court was
correct.
[2] We first consider whether Serrato suffered an “injury in
fact” by BOP’s termination of boot camp. Placement in boot
camp was a discretionary decision made on an individualized
basis by BOP. See 18 U.S.C. § 4046(a); 28 C.F.R.
§ 524.31(b). Under our precedent, however, Serrato suffered
an injury in fact because BOP’s termination of boot camp
denied her the ability to be considered for a program that
would have allowed her to serve only six months in prison.
Cort v. Crabtree, 113 F.3d 1081, 1085 (9th Cir. 1997). In
Cort, three prisoners serving federal sentences for unarmed
bank robbery entered into a drug treatment program, the suc-
cessful completion of which authorized BOP to exercise its
discretion to reduce their sentences by up to one year. Id. at
1082. After the prisoners had begun the program and been
issued determinations of eligibility for early release, BOP
revoked their eligibility for early release because BOP had
5378 SERRATO v. CLARK
reclassified unarmed bank robbery as a crime of violence. Id.
at 1083. The prisoners filed federal habeas corpus petitions
claiming BOP’s action was impermissibly retroactive as
applied to them. The district court denied the petitions on the
ground that BOP retained discretion whether to provide the
prisoners early release. Reversing, we held that even if BOP
retained discretion whether to deny a sentence reduction, the
prisoners had a right to have such a determination made: “A
prisoner’s right to consideration for early release is a valuable
one that we have not hesitated to protect.” Id. at 1085.
[3] Similarly, Serrato had a right to be considered for a pro-
gram that would have reduced her time incarcerated to six
months. As the district court noted, the parties do not dispute
that Serrato was in fact eligible for boot camp.3 Although Ser-
rato, unlike the inmates in Cort, did not receive official notifi-
cation of her eligibility for a correctional program, her injury
was nevertheless concrete, particularized, and imminent.
Judge Brown recommended that Serrato be considered for
boot camp. Regional Director Haro informed Judge Brown
that Serrato would be eligible for direct placement to boot
camp only if her sentence were between 12 and 30 months.
Judge Brown “therefore” resentenced Serrato to 30 months
imprisonment, tailoring the sentence to the term identified in
Regional Director Haro’s letter. See supra at p. 5374. When
boot camp was terminated, Serrato was affected in a personal
and individual way because she could no longer be considered
for a program that would have allowed her to serve only six
months in prison, instead of the 19 months that she served.
See supra at 5372 n.1. That BOP may have later exercised its
discretion to deny Serrato a place at boot camp or to deny her
early release, or that Serrato may have failed to complete boot
camp once enrolled, are not determinative to our standing
3
Eligibility for boot camp requires, among other things, a finding of
physical and mental fitness for the program and a finding that an inmate
is appropriate for housing in minimum security. See 28 C.F.R.
§ 524.31(a).
SERRATO v. CLARK 5379
analysis. Cort, 113 F.3d at 1085. We conclude that Serrato
suffered a cognizable injury for standing purposes when BOP
terminated boot camp.
[4] The remaining elements of standing are whether the
action of which complaint is made can be traced to the
claimed injury, and whether the relief sought can redress that
injury. Wilbur, 423 F.3d at 1107. Serrato’s injury is “fairly
traceable” to BOP’s termination of boot camp, for the reasons
stated above. Had BOP not terminated boot camp, Serrato
could have been considered for direct placement and, if
accepted for enrollment, early release. The sentencing court
has the power to redress any injury by reducing Serrato’s con-
tinuing four-year period of supervised release that began in
2006. See 18 U.S.C. § 3583(e)(2); Johnson, 529 U.S. at 60;
Mujahid, 413 F.3d at 994-95. The remaining elements are sat-
isfied; Serrato has standing to bring this challenge to BOP’s
termination of boot camp.
II. The APA
A. Susceptibility to Judicial Review
BOP’s decision to terminate boot camp is not susceptible
to judicial review under the APA because the decision was
“committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).4
4
“This chapter applies, according to the provisions thereof, except to the
extent that—
(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion by law.”
5 U.S.C. § 701.
When § 701 does not preclude judicial review, § 706 of the APA gives
courts the power to “compel agency action unlawfully withheld or unrea-
sonably delayed,” and the power to “hold unlawful and set aside agency
action, findings, and conclusions.” 5 U.S.C. § 706. In this section we
undertake a § 701 analysis, not full judicial review under § 706. See Heck-
ler v. Chaney, 470 U.S. 821, 829 (1985).
5380 SERRATO v. CLARK
In Lincoln v. Vigil, 508 U.S. 182 (1993), the Indian Health
Service (“IHS”), an agency within the Department of Health
and Human Services, discontinued a pilot program called the
Indian Children’s Program that provided services to physi-
cally and mentally handicapped Indian children in the South-
west region of the United States. In a memorandum to its
offices and referral sources, the agency stated it was terminat-
ing the program as part of an effort to provide a program
national in scope. Id. at 188. Indian children so handicapped,
and eligible to receive services through the Program, sued for
declaratory and injunctive relief, claiming the agency’s deci-
sion to terminate the program violated, inter alia, the APA.
Id. at 189. The district court held IHS’s decision was subject
to judicial review and ordered the program reinstated. Id. (cit-
ing Vigil v. Rhoades, 746 F. Supp. 1471 (D.N.M. 1990)). The
Court of Appeals for the Tenth Circuit affirmed. Id. (citing
Vigil v. Rhoades, 953 F.2d 1225 (10th Cir. 1992)). A unani-
mous Supreme Court reversed, holding the decision to discon-
tinue the program was an allocation of funds from a lump-
sum appropriation for permissible statutory objectives and
therefore committed to agency discretion and proof from judi-
cial review as to the exercise of that discretion under the
APA. Id. at 193-94. The Court held “the very point of a lump-
sum appropriation is to give an agency the capacity to adapt
to changing circumstances and meet its statutory responsibili-
ties in what it sees as the most effective or desirable way.” Id.
at 192. The Court continued:
[A]n agency’s allocation of funds from a lump-sum
appropriation requires a complicated balancing of a
number of factors which are peculiarly within its
expertise: whether its resources are best spent on one
program or another; whether it is likely to succeed in
fulfilling its statutory mandate; whether a particular
program best fits the agency’s overall policies; and,
indeed, whether the agency has enough resources to
fund a program at all.
SERRATO v. CLARK 5381
Id. at 193 (quoting Heckler v. Chaney, 470 U.S. 821, 831
(1985)) (internal quotation marks omitted).
[5] The Lincoln Court stated a test that we here find appli-
cable: “[A]s long as the agency allocates funds from a lump-
sum appropriation to meet permissible statutory objectives,
§ 701(a)(2) gives the courts no leave to intrude. ‘[T]o [that]
extent,’ the decision to allocate funds ‘is committed to agency
discretion by law.’ ” Id. (quoting 5 U.S.C. § 701(a)(2)).
Accordingly, the Court held in Lincoln that the IHS’s decision
to terminate the Indian Children’s Program was committed to
agency discretion and therefore not subject to judicial review
because “[t]he reallocation of agency resources to assist hand-
icapped Indian children nationwide clearly falls within the
Service’s statutory mandate to provide health care to Indian
people . . . .” Id. Here, as in Lincoln, the agency program at
issue is funded from lump-sum funds in an appropriation from
Congress that does not specify how much money should be
used for the program.
Lincoln also provides a framework for us to apply to deter-
mine whether the agency has “allocate[d] funds from a lump-
sum appropriation to meet permissible statutory objectives”
and has therefore rendered a decision that is not subject to
judicial review. Lincoln, 508 U.S. at 193. In Lincoln, the
Supreme Court considered Congress’s statutory mandate to
the IHS, which included the requirements that it “expend such
moneys as Congress may from time to time appropriate, for
the benefit, care, and assistance of the Indians, for the relief
of distress and conservation of health,” 508 U.S. at 185 (quot-
ing 25 U.S.C. § 13) (internal quotation marks omitted); and
make “expenditures for, inter alia, Indian mental-health care,
and specifically for therapeutic and residential treatment cen-
ters,” id. (quoting 25 U.S.C. § 1621(a)(4)(D)) (internal quota-
tion marks omitted). The Court held IHS’s “reallocation of
agency resources to assist handicapped Indian children
nationwide clearly falls within the Service’s statutory man-
date to provide health care to Indian people. . . . The decision
5382 SERRATO v. CLARK
to terminate the Program was committed to the Service’s dis-
cretion.” Id.
[6] Similarly, following the approach in Lincoln, we find
BOP discontinued boot camp to meet permissible statutory
objectives, and that its decision is therefore unreviewable.
Congress’s statutory mandate to BOP includes the following:
The Bureau of Prisons, under the direction of the
Attorney General, shall —
(1) have charge of the management and
regulation of all Federal penal and correc-
tional institutions;
(2) provide suitable quarters and provide
for the safekeeping, care, and subsistence of
all persons charged with or convicted of
offenses against the United States, or held
as witnesses or otherwise;
(3) provide for the protection, instruction,
and discipline of all persons charged with
or convicted of offenses against the United
States . . . .
18 U.S.C. § 4042(a). Congress provided authority for BOP to
operate boot camp in 18 U.S.C. § 4046, but in using the word
“may,” did not mandate that the program operate continu-
ously: “The Bureau of Prisons may place in a shock incarcera-
tion program any person who is sentenced to a term of
imprisonment of more than 12, but not more than 30, months,
if such person consents to that placement.” 18 U.S.C.
§ 4046(a) (emphasis added).5
5
When Congress enacted § 4046, it similarly authorized future appropri-
ations for the program using permissive language: “There are authorized
to be appropriated for fiscal year 1990 and each fiscal year thereafter such
SERRATO v. CLARK 5383
[7] Director Lappin’s January 5, 2005, Message to Staff
noted that boot camp was discontinued as a cost-cutting mea-
sure, which was expected to “result in more effective and effi-
cient operations.” Director Lappin’s message also identifies
three “key principles” guiding BOP’s round of cost-cutting
measures: bringing in new prison beds to reduce crowding,
increasing direct staff contact with inmates, and minimizing
the impact on staff who are displaced by cost-cutting mea-
sures. Director Lappin’s later letter to judges, probation offi-
cers, federal public defenders, and U.S. Attorneys echoes his
January 5 letter. Increasing the efficiency of BOP operations
and advancing the principles articulated by Director Lappin
“clearly fall[ ] within the [agency’s] statutory mandate.” Lin-
coln, 508 U.S. at 193. Reducing crowding, increasing staff
contact with inmates, and trying to retain valuable staff mem-
bers help further BOP’s statutorily mandated mission. See 18
U.S.C. § 4042(a). As an allocation of lump-sum appropria-
tions for statutorily permissible uses, BOP’s decision to termi-
nate boot camp is not susceptible to judicial review under the
APA.
B. Notice and Comment
[8] An agency’s obligation to comply with the APA’s
notice and comment provisions is an administrative require-
ment that must be fulfilled, notwithstanding whether an agen-
cy’s action is susceptible to judicial review. 5 U.S.C. § 553;
Lincoln, 508 U.S. at 195-96. Here, BOP was not required to
use notice and comment procedures in terminating boot camp
because its decision was a “general statement[ ] of policy”
exempt from notice and comment. 5 U.S.C. § 553(b)(A).
sums as may be necessary to carry out the shock incarceration program
established under the amendments made by this Act.” Crime Control Act
of 1990, Pub. L. No. 101-647, § 3002 (1990), 104 Stat. 4789, 4915
(emphasis added).
5384 SERRATO v. CLARK
[9] Again, Lincoln is on point. In Lincoln, the Supreme
Court held that the IHS’s discontinuance of the Indian Chil-
dren’s Program was a general statement of policy because it
was a “statement issued by an agency to advise the public
prospectively of the manner in which the agency proposes to
exercise a discretionary power.” Lincoln, 508 U.S. at 197
(citation and internal quotation marks omitted). The Court
further held: “Whatever else may be considered a ‘general
statemen[t] of policy,’ the term surely includes an announce-
ment like the one before us, that an agency will discontinue
a discretionary allocation of unrestricted funds from a lump-
sum appropriation.” Id. For reasons discussed above, our case
similarly involves a discretionary allocation of unrestricted
funds from a lump-sum appropriation. Because Lincoln con-
trols, BOP’s decision is a general statement of policy; notice
and comment simply was not required.6
III. Sentencing Statutes, Sentencing Guidelines, and the
Separation of Powers
Serrato argues BOP’s termination of boot camp violates
federal sentencing statutes and the United States Sentencing
Guidelines (“Guidelines”), which “assume the existence of
the program.” Serrato’s theory is that by terminating boot
camp, BOP impermissibly intruded on other branches of gov-
ernment, namely, on Congress’s prerogative to enact a boot
camp program, on the United States Sentencing Commis-
sion’s ability to promulgate the Guidelines, and on the judi-
6
Morton v. Ruiz, 415 U.S. 199 (1974) does not control the result here.
In Morton, the Bureau of Indian Affairs discontinued benefits to Indians
living near reservations without formally publishing eligibility require-
ments, as provided for in a Bureau manual. Off-reservation Indians sued
under, inter alia, federal Indian law statutes. The district court dismissed
the complaint, and we reversed. The Supreme Court affirmed and
remanded. It held that the agency’s action violated both agency procedures
and the government’s duty to deal fairly with Indians, and therefore the
action would not be granted deference. Morton is not on point because
APA notice and comment requirements were not at issue in Morton, which
dealt with the enforcement of the agency’s own regulations.
SERRATO v. CLARK 5385
ciary’s ability to recommend that prisoners be designated to
boot camp.
BOP has a responsibility to inform the Sentencing Com-
mission of suggested comments and changes to the Guide-
lines. 28 U.S.C. § 994(o) provides that BOP “shall submit to
the [U.S. Sentencing] Commission any observations, com-
ments, or questions pertinent to the work of the Commission
whenever they believe such communication would be useful.”
It further provides that BOP shall submit an annual report
“suggesting changes in the guidelines that appear to be war-
ranted.” Id. 28 U.S.C. § 994(p) provides for the Commission,
in turn, to “submit to Congress amendments to the guidelines
and modifications to previously submitted amendments.”
[10] Boot camp is a federal sentencing option under the
Guidelines. Chapter 5, Part F, of the United States Sentencing
Commission’s Guidelines Manual is entitled “Sentencing
Options” and includes U.S.S.G. § 5F1.7, p.s., “Shock Incar-
ceration Program (Policy Statement).” This section provides
that federal sentencing courts “may recommend that a defen-
dant who meets the criteria set forth in 18 U.S.C. § 4046 par-
ticipate in a shock incarceration program.” Id.
[11] BOP’s termination of boot camp has not, however,
impermissibly altered or amended a Sentencing Guideline
without proper approval from the Commission or Congress.
Both 18 U.S.C. § 4046 and U.S.S.G. § 5F1.7 remain on the
books and have practical effect. Section 4046 continues to
authorize BOP to establish a boot camp program. Section
5F1.7 continues to authorize judges to recommend prisoners
to such program, if and when it may be renewed.7 BOP’s dis-
cretionary decision how to allocate its lump sum appropria-
7
Even if BOP does not reestablish boot camp, BOP may take other
actions based on a sentencing judge’s recommendation under § 5F1.7 that
a prisoner “participate in a shock incarceration program.” For example,
Serrato attended a state boot camp in Wisconsin.
5386 SERRATO v. CLARK
tion does not impermissibly impinge on Congress, the
Sentencing Commission, or the judiciary.
IV. The Ex Post Facto Clause and Retroactivity Doctrine
[12] Finally, Serrato argues that BOP’s cancellation of boot
camp violated the Ex Post Facto Clause and was impermiss-
ibly retroactive. Article I, § 9, cl. 3, of the Constitution pro-
vides: “No Bill of Attainder or ex post facto Law shall be
passed.” The Supreme Court has stated: “To fall within the ex
post facto prohibition, a law must be retrospective—that is, it
must apply to events occurring before its enactment—and it
must disadvantage the offender affected by it, by altering the
definition of criminal conduct or increasing the punishment
for the crime.” Lynce v. Mathis, 519 U.S. 433, 441 (1997)
(citations omitted) (holding that state statute cancelling early
release credits, and resulting in the rearrest and reincarcera-
tion of a former prisoner, violated the Ex Post Facto Clause).
The Lynce opinion relied on Weaver v. Graham, 450 U.S. 24
(1981), which held that when a Florida statute reducing the
amount of good credit time available to a prisoner was applied
to a prisoner whose crime occurred before the statute’s enact-
ment, the Ex Post Facto Clause was violated:
As we recognized in Weaver, retroactive alteration
of parole or early release provisions, like the retroac-
tive application of provisions that govern initial sen-
tencing, implicates the Ex Post Facto Clause because
such credits are “one determinant of petitioner’s
prison term . . . and . . . [the petitioner’s] effective
sentence is altered once this determinant is
changed.”
Lynce, 519 U.S. at 445-46 (quoting Weaver, 450 U.S. at 32).
[13] Assuming that BOP regulations terminating boot camp
constitute a “law,” that law does not result in an Ex Post Facto
Clause violation. Lynce and Weaver do not control this case.
SERRATO v. CLARK 5387
In those cases, prisoners with vested good time credits had
those vested benefits revoked by statute. Here, by contrast,
Serrato had only a recommendation by a judge that her eligi-
bility for a discretionary program be evaluated. Serrato had
not earned any early release privileges when informed that the
program she wanted to attend had been terminated; thus, this
case is unlike Lynce and Weaver. BOP regulations terminat-
ing boot camp did not alter the definition of criminal conduct
or increase Serrato’s punishment for the crime within the
meaning of the Ex Post Facto Clause.8
[14] Quoting this court, Serrato argues that BOP’s termina-
tion of boot camp was impermissibly retroactive agency
action.
[T]his is not a game of Lucy and the football from
the world of Charles Schulz. Rather, it is a serious
administrative agency program to be administered in
a consistent, coherent matter. An agency cannot pro-
vide participants with a determination of eligibility
based on the purported examination of objective
criteria, then subsequently deny them eligibility by
exercise of whim. If we expect inmates to observe
the rule of law, we must adhere to it ourselves.
Bowen v. Hood, 202 F.3d 1211, 1222 (9th Cir. 2000). As this
language shows, however, in Bowen—and in Cort, discussed
supra Part I—BOP attempted to revoke prior determinations
of eligibility for early release. Unlike the inmates in Bowen
and Cort, Serrato was never officially notified of eligibility
for boot camp. There is thus no basis for concluding that BOP
8
In Castellini v. Lappin, 365 F. Supp. 2d 197, 205 (D. Mass. 2005), the
district court concluded that, under Lynce and Weaver, an inmate was
likely to prevail on a claim that boot camp termination violated the Ex
Post Facto Clause. However, the court docket shows the case was later
dismissed. Of course, that decision would not bind our court even had it
not been dismissed.
5388 SERRATO v. CLARK
has flouted the “rule of law” within the meaning of Bowen.
Regional Director Haro informed Judge Brown that Serrato
“will be reviewed for [boot camp] when she is 24 months
from her release.” Judge Brown reduced Serrato’s sentence to
30 months so that she could instead be placed directly into
boot camp, but this does not change the fact—determinative
to our retroactivity analysis—that BOP did not inform Serrato
of her eligibility for boot camp. The boot camp program was
terminated before any such determination was made by the
competent authorities. Therefore, Serrato’s retroactivity chal-
lenge fails.
Conclusion
Although this case is not moot and Serrato has standing to
challenge BOP’s termination of boot camp, her substantive
challenges fail. BOP’s decision, which was prompted by what
it saw as budget constraints and better uses of its lump-sum
appropriation, was committed to its discretion by law, and did
not require notice and comment. BOP’s act did not violate
sentencing statutes, the Guidelines, or the separation of pow-
ers. Serrato has suffered no harm cognizable under the Ex
Post Facto Clause or our retroactivity doctrine.
AFFIRMED.