Williams v. Van Buren

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 20, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10775
Summary Calendar
DEBORAH SUZANNE WILLIAMS,
Petitioner-Appellant,
versus
GINNY VAN BUREN, Warden Federal Medical Center Carswell,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CV-390-A
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Deborah Suzanne Williams, federal prisoner # 13252-074,
appeals from the district court’s denial of relief on her 28
U.S.C. § 2241 petition. Williams is currently confined at the
Carswell Federal Medical Center in Forth Worth, Texas. She is
scheduled for release in April 2008.
After being diagnosed with cancer, Williams requested that
the Bureau of Prisons (“BOP”) move in the district court,
pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), for a reduction of her

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No. 04-10775
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sentence. The BOP denied her request for “compassionate
release.” The BOP stated that it “generally restricts” the
application of 18 U.S.C. § 3582(c)(1)(A)(i) to inmates who have
been diagnosed with medical conditions that are terminal within
one year or who suffer from severely debilitating and
irreversible conditions that render them unable to provide self-
care. The BOP determined that Williams’s cancer was in remission
and that there was no indication that she could not complete her
sentence.
Williams does not dispute that her cancer is in remission,
but she contends that, statistically, she will not live much
longer. She argues that the BOP’s unwritten policy on
compassionate release is not an interpretive rule, but rather is
a legislative rule that exceeds the requirements for
compassionate release as set forth in governing statutes and
regulations and thus violates the “notice and comment”
requirements of the Administrative Procedure Act (“APA”).
Williams requests that the BOP’s denial of her request for a
motion for compassionate release be set aside.
The APA requires “notice and comment” rulemaking procedures
to be followed whenever rules which affect the rights and
obligations of those being regulated are created. See Mercy
Hosp. of Laredo v. Heckler, 777 F.2d 1028, 1032 (5th Cir. 1985).
Interpretive rules, however, are exempt from such requirements.
See Phillips Petroleum Co. v. Johnson, 22 F.3d 616, 619-20 (5th

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No. 04-10775
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Cir. 1994). “Substantive or legislative rules affect individual
rights and obligations and are binding on the courts. Non-
legislative rules, on the other hand, genuinely leave the agency
and its decisionmakers free to exercise discretion.” Texas Sav.
& Community Bankers Ass’n v. Federal Housing Finance Bd., 201
F.3d 551, 556 (5th Cir. 2001)(internal citation and internal
quotation omitted).
The BOP’s policy of “generally restrict[ing]” compassionate
release to inmates who have been diagnosed with medical
conditions that are terminal within one year, or who suffer from
severely debilitating and irreversible conditions that render
them unable to provide self-care, permits the exercise of
discretion on the part of the bureau and thus is an interpretive
rule. See id. Moreover, Williams has not shown that BOP’s
limitation on compassionate release affects her individual
rights. See id.; Wottlin v. Fleming, 136 F.3d 1032, 1037 (5th
Cir. 1998) (“A convicted prisoner does not have a constitutional
right to be released before the expiration of a valid
sentence.”). In view of the foregoing, we conclude that the rule
in question is an interpretive rule that is not subject to the
“notice and comment” requirements of the APA, and we AFFIRM the
judgment of the district court.
AFFIRMED.

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