ALD-074                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                Nos. 10-3896 & 10-3897
                                     ___________

                                   ALAN N. SCOTT,
                                              Appellant

                                           v.

                             FCI FAIRTON, WARDEN
                      ____________________________________

                   On Appeal from the United States District Court
                             for the District of New Jersey
                 (D.C. Civil Action Nos. 09-cv-00929 & 09-cv-04710)
                    District Judge: Honorable Renee Marie Bumb
                     ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                 December 22, 2010

           Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

                               (Filed January 14, 2011)
                                      _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM.

      Alan Scott, a federal prisoner proceeding pro se, appeals from five orders issued

by the District Court in his habeas proceedings brought under 28 U.S.C. § 2241. For the

reasons that follow, we will summarily affirm.
                                              I.

       This procedurally convoluted case began in March 2009, when Scott filed a pro se

habeas petition in the District Court pursuant to § 2241. He alleged that the Bureau of

Prisons (“BOP”) had wrongfully denied him admission into FCI-Fairton’s Residential

Drug Abuse Program (“RDAP”), and that he would be eligible for a sentence reduction

pursuant to 18 U.S.C. § 3621(e)(2)(B) upon completing that program. Scott’s case was

assigned docket number 1:09-cv-00929 (hereinafter referred to as “Case 929”).

       On May 26, 2009, the District Court entered a sua sponte order that dismissed

Scott’s habeas petition but also provided him with an opportunity to file an amended

petition if certain facts were present in his case. Scott subsequently filed an amended

petition, which attempted to clarify his claims and argued, inter alia, that regardless of

whether he should have been admitted into RDAP, he was otherwise eligible for a

sentence reduction under § 3621(e)(2)(B) in light of his having participated in a pre-

RDAP drug abuse treatment program while incarcerated in federal prison between 1982

and 1985. On July 17, 2009, the court entered a sua sponte order dismissing his amended

petition. That order, like the one that preceded it, left room for Scott to re-plead certain

aspects of his claims. Scott moved for reconsideration of that order and submitted

additional filings in support of his claims. In a sua sponte order entered on September 14,

2009, the District Court concluded that these latest filings “asserted a factually different

scenario” than his earlier filings. (Dist. Ct. Order of Sept. 14, 2009, at 3.) As a result, the

court closed Case 929, and directed the clerk to open another habeas proceeding, docket

                                              2
Scott’s latest round of filings in that second case, and serve all of Scott’s filings on the

BOP (who had yet to be served in Case 929). The court ordered the BOP to answer only

those filings docketed in the second case, which was assigned docket number 1:09-cv-

04710 (hereinafter referred to as “Case 4710”).

       While Case 4710 was pending, Scott appealed from the court’s September 14,

2009 order in Case 929. On May 11, 2010, we dismissed that appeal as interlocutory. In

doing so, we explained that

              neither the court’s September 14, 2009 order, nor any of its
              earlier orders, resolved all of [Scott’s] claims, for he still has
              claims pending before the court. That the District Court
              closed Scott’s original habeas proceeding and opened a new
              habeas proceeding to address those pending claims does not
              change this result. Although the court concluded in its
              September 14, 2009 order that Scott’s then most recent set of
              filings, when compared to his earlier filings, “asserted a
              factually different scenario,” we conclude that his legal
              claims did not change. Indeed, Scott’s efforts to obtain
              habeas relief had centered around, and continued to center
              around, his claims that he should have been admitted to
              RDAP, and that he is eligible for a § 3621 sentence reduction
              upon his completing that program. Accordingly, because the
              District Court did not certify any of the challenged orders
              pursuant to [Fed. R. Civ. P.] 54(b), they are not appealable at
              this time. Those orders may be reviewed on appeal when the
              District Court has issued a final judgment in Scott’s pending
              proceeding.

Scott v. Fairton FCI, 379 F. App’x 155, 156-57 (3d Cir. 2010) (per curiam).

       On June 17, 2010, the District Court entered an order in both Case 929 and Case

4710. That order denied what the court construed as Scott’s latest motion for

reconsideration in Case 929, dismissed without prejudice a “quasi-Section-2241-petition”

                                               3
that had been docketed in Case 929 in May 2010,1 and denied Scott’s motion for partial

summary judgment filed in Case 4710. The order also re-terminated Case 929 and

prohibited Scott from making any further filings in that case.

       On September 9, 2010, the District Court dismissed Scott’s habeas petition in Case

4710, entered a final judgment, and closed the case. Later that month, Scott filed a single

notice of appeal, seeking review of the court’s May 26, 2009, July 17, 2009, September

14, 2009, June 17, 2010, and September 9, 2010 orders. The Clerk treated Scott’s notice

as raising two separate appeals — one challenging the orders entered in Case 929 and the

other challenging the orders entered in Case 4710. Those two appeals were docketed at

C.A. No. 10-3896 and C.A. No. 10-3897, respectively.

       On October 18, 2010, Scott moved to consolidate the two appeals. The Clerk

denied that request on November 2, 2010. Scott has since filed a motion to reconsider

that denial. Because both appeals are timely2 and, for the reasons explained in our May


       1
         It appears that this “quasi-Section-2241-petition” was just a letter from Scott to
the court, and that he did not intend it to be filed in his case.
       2
         Under Fed. R. App. P. 4(a)(1)(B), a party has 60 days to appeal from a judgment
in a case in which “the United States or its officer or agency is a party.” Although Scott
did not file his notice of appeal in Case 929 within 60 days of the District Court’s June
17, 2010 order — the most recent order in that case that is challenged here — his appeal
in C.A. No. 10-3896 is not untimely. Our May 11, 2010 decision made clear that Scott’s
two proceedings in the District Court were effectively one proceeding, and that he could
appeal from the District Court’s orders in Case 929 after the court entered a final
judgment in Case 4710. Accordingly, because Scott filed his notice of appeal within 60
days of the court’s final judgment in Case 4710, the appeal is timely as to both Case 929
and Case 4710.
       We further note that even if Case 929 and Case 4710 were construed as separate
proceedings, Scott’s appeal in C.A. No. 10-3896 would still be timely. Were we to treat
Case 929 as separate from Case 4710, the time for appealing the court’s June 17, 2010
                                             4
11, 2010 decision, effectively relate to the same District Court proceeding, we hereby

grant Scott’s motion and consolidate the two appeals. We now turn to the merits of these

appeals.3

                                             II.

       Although Scott challenges five separate District Court orders, this case ultimately

turns on two issues: whether he would be able to complete RDAP and whether he is

otherwise eligible for a sentence reduction under § 3621(e)(2)(B). To complete RDAP,

an inmate must satisfy both a unit-based component and a transitional drug abuse

treatment (“TDAT”) component.4 See 28 C.F.R. § 550.53(a). The unit-based

component, during which the inmate “must complete a course of activities provided by

drug abuse treatment specialists and the Drug Abuse Program Coordinator in a treatment

unit set apart from the general prison population,” must last at least six months. 28

C.F.R. § 550.53(a)(1). According to the BOP, this component, in practice, takes nine to

12 months to complete. (See BOP’s Nov. 23, 2010 filing with this Court, at 2-3 (citing


order would not have begun to run until November 15, 2010, for that order did not
comply with Fed. R. Civ. P. 58(a)’s separate document rule. See Fed. R. App. P.
4(a)(7)(A)(ii); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 224 (3d Cir.
2007) (stating that, to satisfy Rule 58(a), an order must, inter alia, be self-contained and
separate from the court’s corresponding opinion). Scott’s notice of appeal, submitted
well before November 15, 2010, would be construed as having been timely filed on that
date. See Fed. R. App. P. 4(a)(2).
       3
         We have jurisdiction over these appeals pursuant to 28 U.S.C. § 1291, and may
affirm the District Court’s orders on any basis supported by the record. See Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999).
       4
         Additionally, “[i]f time allows between completion of the unit-based component
of the RDAP and transfer to a community-based program, inmates must participate in the
follow-up services to the unit-based component of the RDAP.” 28 C.F.R. § 550.53(a)(2).
                                             5
U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program Statement 5330.11, § 2.5.1(a)(1)

(Mar. 16, 2009)).) As for the TDAT component, the BOP avers that this component is a

“six (6) month program that begins within 10 days of the inmate’s arrival at the [halfway

house], and continues until the inmate is released.” (BOP’s Nov. 23, 2010 filing with this

Court, at 3.) All told, therefore, it appears that RDAP takes at least 15 months to

complete. After an inmate completes RDAP, the BOP has discretion to reduce what

remains of his sentence by as much as one year. See 18 U.S.C. § 3621(e)(2)(B); 28

C.F.R. § 550.55.

       Scott’s sentence is scheduled to expire on June 5, 2011, and the BOP has recently

transferred him to a halfway house to serve the remainder of his sentence. As a result,

even if Scott were eligible for RDAP — an issue we need not decide here — he would be

unable to participate in the unit-based component of that program. Apart from that, there

is insufficient time for him to complete RDAP before his sentence expires. Scott

recognizes all of this, for the relief he seeks from this Court does not center around his

efforts to enter that program. Instead, he asks that we remand this case and direct the

District Court to grant his habeas petition as to his claim that he is entitled to a

§ 3621(e)(2)(B) sentence reduction based on his having allegedly completed a pre-RDAP

drug abuse treatment program in 1985. We cannot grant this request for relief, however,

as his underlying claim lacks merit. Even if Scott did complete a pre-RDAP program in

1985 — a point that the BOP disputed before the District Court and one that is not

substantiated by the record — the completion of that program would not trigger a

                                               6
§ 3621(e)(2)(B) sentence reduction because he did not complete that program during his

current incarceration. See 28 C.F.R. § 550.55(a)(2).5

       In light of the above, and because these appeals do not present a substantial

question, we will summarily affirm the District Court’s orders.6 See 3d Cir. LAR 27.4;

3d Cir. I.O.P. 10.6. To the extent Scott’s “Motion to Continue Impoundment” requests

that all documents filed under seal in the District Court remain sealed for the purpose of

these appeals, that motion is granted. Scott’s motion to expedite these appeals is denied

as moot.




       5
         In support of his pre-RDAP program claim, Scott cites to former 28 C.F.R.
§ 550.58, which was removed on January 14, 2009. We note that former § 550.58, like
current § 550.55, provided that an inmate was eligible for a § 3621(e)(2)(B) sentence
reduction only if he completed a residential drug abuse treatment program during his
current incarceration.
       6
         Although Scott contends that the District Court Judge was biased against him, we
are not persuaded by this argument. Having reviewed the record, we are confident that
Judge Bumb adjudicated Scott’s claims in an impartial manner.
                                             7
