                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                SEPT 12, 2006
                               No. 06-11080                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                       D. C. Docket No. 05-00138-CV-3

JOSE LUIS HILARIO-PAULINO,


                                                             Petitioner-Appellant,

                                     versus

MICHAEL PUGH,
Warden,

                                                            Respondent-Appellee.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                             (September 12, 2006)

Before ANDERSON, BIRCH and KRAVITCH, Circuit Judges.

PER CURIAM:

     Jose Luis Hilario-Paulino (“Hilario”), a federal prisoner proceeding pro se,
appeals the district court’s denial of his habeas corpus petition brought pursuant to

28 U.S.C. § 2241. For the reasons that follow, we AFFIRM.

                                    I. Background

      Hilario is a federal prisoner confined to the McRae Correctional Facility

(“MCF”), a prison operated by Corrections Corporation of America (“CCA”)

pursuant to a contract with the Bureau of Prisons (“BOP”). The contract between

the BOP and CCA provides that CCA shall follow the BOP’s Program Statement

5270.07, Inmate Discipline and Special Housing Units.

      A Disciplinary Hearing Officer disciplined Hilario for an infraction,

imposing as sanctions the disallowance of twenty-seven days of Good Conduct

Time (“GCT”) and the forfeiture of twenty days of GCT. Hilario appealed the

imposition of sanctions to National Inmate Appeals (“NIA”), which upheld the

sanctions.

      Hilario then filed the instant habeas petition, challenging the imposition of

sanctions on the grounds that (1) the BOP unlawfully delegated its statutory

authority to discipline inmates to CCA; and (2) the BOP’s Program Statement does

not authorize MCF, a privately run prison, to impose disciplinary sanctions.

      Hilario argued that, despite the fact that the BOP has authority over federal

prisoners, according to 28 C.F.R. § 0.97, the BOP is only permitted to delegate its



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authority over inmate discipline to governmental entities. Hilario further argued

that the Program Statement, according to its plain language, only applies to federal

inmates and not to those held in privately run facilities. He thus argued that the

Program Statement does not authorize MCF to impose disciplinary sanctions, and

he demanded that the sanctions imposed on him be removed.

      The magistrate judge rejected Hilario’s arguments, concluding that although

MCF is not a federal prison, the BOP’s delegation of authority to impose

disciplinary sanctions was lawful because the BOP retained final decision-making

authority regarding inmate discipline. The district court adopted the magistrate

judge’s recommendations and dismissed the petition. Hilario now appeals.

                               II. Standard of Review

      We review the district court’s denial of habeas corpus relief de novo. Byrd

v. Hasty, 142 F.3d 1395, 1396 (11th Cir. 1998). We review questions of statutory

interpretation and other issues of law de novo. See United States v. Trainor, 376

F.3d 1325, 1330 (11th Cir. 2004).

                                    III. Discussion

      Hilario contends that the BOP impermissibly delegated its authority to

discipline inmates to CCA, in violation of both 18 U.S.C. § 4042 and 28 C.F.R. §




                                          3
0.97 promulgated thereunder.1 He argues that the BOP’s contract with CCA

violates the statute and regulation because both forbid the delegation of the BOP’s

disciplinary authority to private entities.

Statutory Violation

       The statute provides, in pertinent part, that the BOP shall:

       (1) have charge of the management and regulation of all Federal penal
       and correctional institutions; . . . [and] (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 has also provided that “[t]he Attorney General may

establish and conduct industries, farms, and other activities and classify the

inmates; and provide for their proper government, discipline, treatment, care,

rehabilitation, and reformation.” 18 U.S.C. § 4001(b)(2).

       When reviewing an agency’s interpretation of a statute it administers, we

apply the Chevron two-step inquiry. See Chevron U.S.A., Inc. v. Natural Res. Def.


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         Hilario’s arguments are somewhat unclear, as he seems to believe that Congress drafted
28 C.F.R. § 0.97. It appears, however, that he is challenging the BOP’s delegation as both
contrary to Congress’s intent and as a violation of its own regulation. In any event, we must
address the question of whether the agency has exceeded is statutory authority as part of our
analysis of the agency’s interpretation of its regulation. See, e.g., John F. Manning,
Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96
Colum. L. Rev. 612, 627 n. 78 (1996) (“It is important to note that because a regulation must be
consistent with the statute it implements, any interpretation of a regulation naturally must accord
with the statute as well. . . . [T]o get to Seminole Rock deference, a court must first address the
straightforward Chevron question whether an agency regulation, as interpreted, violates the
statute. Seminole Rock addresses the further question whether the agency’s interpretation is
consistent with the regulation.”).

                                                 4
Council, Inc., 467 U.S. 837, 842-44 (1984). First, we determine “whether

Congress has directly spoken to the precise question at issue.” Id. at 842. “If the

intent of Congress is clear, that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent of Congress.” Id.

at 842-43. If Congress has not directly addressed the matter, however, or if the

statute is ambiguous with respect to the matter, we move to Chevron’s second step

to decide “whether the agency’s [regulation] is based on a permissible construction

of the statute.” Id. at 843.

       Here, Congress’s grant of authority to the agency is quite broad.

Accordingly, we will not disturb the agency’s interpretation of the extent of its

statutorily delegated authority unless such interpretation is unreasonable. Id. at

843-44.

       The BOP interprets the statute in such a way that it permits the agency to

delegate a portion of the authority to discipline prisoners in privately run

institutions to private actors, though reserving for itself the role of final arbiter.

We cannot say that such an interpretation is unreasonable.

       The BOP’s partial delegation is consistent with similar arrangements

between other agencies and private parties. For example, the Maloney Act, 15

U.S.C. § 78o-3 (1982), which provides for some self-regulation of the securities



                                             5
industry, authorizes a dealer association to discipline members , but also provides

for a right of appeal to the Securities and Exchange Commission (“SEC”). Todd &

Co., Inc. v. SEC, 557 F.2d 1008, 1012 (3d Cir. 1977). “After affording the

opportunity for a hearing, the [SEC] determines whether the petitioner committed

the charged acts and whether they are in violation of the Association’s rules”; it is

not restricted to the record before the Association. Id. “The [SEC] may then

reduce, cancel, or leave undisturbed the penalty imposed.” Id. The Third Circuit

upheld this delegation because the SEC:

      (1) has the power, according to reasonably fixed statutory standards,
      to approve or disapprove the Association’s rules; (2) must make de
      novo findings aided by additional evidence if necessary, and (3) must
      make an independent decision on the violation and penalty, the court
      found no merit in the unconstitutional delegation argument.

Id. at 1012-13. In a prior decision, the Second Circuit upheld the delegation on the

same basis. See R.H. Johnson v. SEC, 198 F.2d 690, 695 (2d Cir. 1952).

      Accordingly, in this context, the fact that the BOP provides a final layer of

de novo review allays any concerns regarding the delegation of the initial stages of

disciplinary proceedings, which are brought pursuant to and administered

according to BOP guidelines. See Ira P. Robbins, The Impact of the Delegation

Doctrine on Prison Privatization, 35 UCLA L. Rev. 911, 922 (1988) (predicting

that delegation of disciplinary functions to an operator of a private prison will be



                                           6
upheld in situations where the “private company maintain[s] control over such

proceedings, [if] the corrections agency [] make[s] de novo findings and an

independent decision on the violation and the penalty”).

      Accordingly, the BOP’s interpretation of its statutory powers and delegation

of disciplinary functions are lawful.

Violation of Regulation

      We next consider whether the BOP’s delegation of disciplinary authority to

CCA violates its own regulations.

      In promulgating 28 C.F.R. § 0.97, the Attorney General authorized the

Director of the BOP “to redelegate to any of his subordinates any of the authority,

functions or duties vested in him . . . . A redelegation of authority is limited to

employees of the Department of Justice.” Id. Accordingly, Hilario argues that

because the Director of the BOP is only authorized to redelegate his authority to

“employees of the Department of Justice,” the BOP’s delegation of the authority to

discipline inmates to CCA constitutes a violation of § 0.97.

      The United States contends that it has not violated the redelegation

limitation in § 0.97 because the BOP Administrator of NIA retained the authority

to review de novo the sanction imposed on Hilario. Thus, the United States

appears to argue that it did not “delegate” its authority to discipline inmates to



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CCA within the meaning of the regulation.

      By providing in its contract with CCA that CCA shall follow the BOP’s

Program Statement for disciplinary procedures, the BOP has indicated that it

interprets the delegation of part of its disciplinary functions to CCA to be

consistent with § 0.97.

      We accord “substantial deference” to an agency’s interpretation of its own

regulation; that interpretation is given “controlling weight unless it is plainly

erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala,

512 U.S. 504, 512 (1994) (quoting Bowles v. Seminole Rock & Sand Co., 325

U.S. 410, 414 (1945)) (internal quotation marks omitted).

      Because the BOP’s interpretation of the term “redelegate” in § 0.97 is

neither plainly erroneous nor inconsistent with the regulation, we defer to that

interpretation.

The Program Statement

      Hilario’s final argument is that the BOP’s Program Statement, by its own

terms, does not apply to prisoners held in privately operated facilities. The

Program Statement provides, in pertinent part:

      So that inmates may live in a safe and orderly environment, it is
      necessary for institution authorities to impose discipline on those
      inmates whose behavior is not in compliance with Bureau of Prisons
      rules. The provisions of this rule apply to all persons committed to

                                            8
      the care, custody, and control (direct and constructive) of the Bureau
      of Prisons. Examples of persons to whom this policy applies include,
      but are not limited to, an inmate who is on pretrial status, or on writ,
      or on escorted trip or furlough, or who is escorted by U. S. Marshals
      or other federal law enforcement officials, or who is in a camp,
      contract facility, (other than contract CCCs) or hospital, or who is
      returned to Bureau custody from a contract facility (includes contract
      CCCs). These provisions do not apply to a federal inmate designated
      to a non-federal facility (e.g., inmates serving Federal sentences in
      state facilities or contract CCCs)

(Emphasis added.)

      The United States suggests, without providing any explanation, that MCF is

a “contract facility,” and therefore within the scope of the Program Statement,

rather than a “contract CCC,” which would apparently take MCF outside of that

scope. The quoted portion of the Program Statement is certainly ambiguous on

this matter, and the United States has done nothing to clarify that ambiguity.

However, by providing in its contract with CCA that CCA shall apply the Program

Statement, the BOP has implicitly interpreted the relevant language such that CCA

is a contract facility and not a contract CCC.

      Because the BOP’s delegation of part of its disciplinary authority was within

its statutory mandate and consistent with its regulation and Program Statement, we

AFFIRM.




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