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Kittel v. Thomas

July 2, 2010


Appeal from the United States District Court for the District of Oregon, Garr M. King, Senior District Judge, Presiding, D.C. No. 3:07-cv-00851-KI.

The opinion of the court was delivered by: McKEOWN, Circuit Judge



Submitted June 11, 2010*fn1 -- Portland, Oregon

Before: David R. Thompson and M. Margaret McKeown, Circuit Judges, and Robert J. Timlin, Senior District Judge.*fn2

William Kittel, a federal prisoner incarcerated in Oregon, filed a pro se federal habeas petition under 28 U.S.C. § 2241. He challenges a Bureau of Prisons ("BOP") rule that categorically excludes from an early release incentive program prisoners whose offenses of conviction involved firearms possession. The district court dismissed his habeas petition as moot in light of Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008), relying in part on Burkey v. Marberry, 556 F.3d 142 (3d Cir. 2009). We affirm the district court's dismissal of Kittel's habeas petition.


The BOP has statutory authority to grant a sentence reduction of up to a year to an inmate convicted of a nonviolent felony upon the inmate's successful completion of the Residential Drug Abuse Program ("RDAP"). 18 U.S.C. § 3621(e)(2)(B). Under a final rule promulgated in 2000, the BOP categorically excluded from this early release initiative inmates whose offense of conviction included weapons possession or use. 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000). Kittel was found eligible to participate and did participate in the RDAP, but the BOP, relying on the 2000 rule, denied him the early release benefit because his offense of conviction included weapons possession.

Kittel filed a habeas petition on June 7, 2007, to challenge the BOP's denial of his eligibility for early release. The district court dismissed his petition, but while on appeal, we decided Arrington, which involved a procedural challenge to the 2000 rule by a group of inmates. In these consolidated cases, we ultimately held that the 2000 rule was procedurally invalid under the Administrative Procedure Act ("APA") because the BOP did not adequately provide a rationale for the adoption of the rule. 516 F.3d at 1114. Although Kittel's habeas petition was pending at the time of Arrington, his case was not part of the consolidated Arrington cases.

Kittel completed RDAP on March 24, 2008, just over a month after Arrington was decided. Ten days after Kittel's completion of RDAP, the BOP reconsidered Kittel's case in light of Arrington and found him eligible for early release. As a result, Kittel was sent to a halfway house to complete RDAP's transitional component.

On July 22, 2008, we granted Kittel's request to remand his case to the district court for it to consider his petition in light of Arrington. Kittel was then transferred to home confinement, and the BOP moved to dismiss Kittel's petition as moot. The BOP released Kittel from its custody on October 28, 2008. On November 20, 2008, the district court granted the BOP's motion to dismiss the petition as moot, but upon a motion for reconsideration, the court determined that it had erred and reopened the case. After oral argument, the district court again held that it was "undisputed" that Kittel had "suffered an actual injury traceable to the BOP," and he had only received partial relief. Nonetheless, the court dismissed Kittel's habeas petition as moot, noting that the remedy he sought "would simply reiterate a fact that is not in dispute- that petitioner was initially wrongfully denied eligibility for early release benefits," and that there was no effective relief it could grant.


The Constitution limits the jurisdiction of the federal courts to live cases and controversies, and as such, federal courts may not issue advisory opinions. U.S. CONST., art. III; Flast v. Cohen, 392 U.S. 83, 96 (1968). "Failure to satisfy Article III's case-or-controversy requirement renders a habeas petition moot." Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir. 2005) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)).

Kittel maintains that his action is not moot, because under Gunderson v. Hood, 268 F.3d 1149 (9th Cir. 2001), and Mujahid, the possibility exists that his term of supervised release could be reduced upon a motion under 18 U.S.C. ยง 3583(e). Kittel received only a partial remedy in the form of a reduction of seven months of his sentence, so he asserts that he was wrongfully incarcerated for up to five extra months based on the BOP's initial denial of his eligibility for early release upon completion of RDAP. He argues that a favorable ruling from this court on the wrongfulness of the BOP's ...

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