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February 10, 2004.

MICHAEL COHN, Petitioner, Plaintiff, -against- THE FEDERAL BUREAU OF PRISONS, HARLEY G. LAPPIN, in his official capacity as Director of the Federal Bureau of Prisons, and FREDRICK MENIFEE, in his official capacity as the Warden of Federal Correctional Institution — Otisville, Respondents-Defendants

The opinion of the court was delivered by: WILLIAM PAULEY, District Judge


Petitioner-plaintiff Michael Cohn moves for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, and a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 1331, 2241(a), (c)(1), and 2243, against respondents-defendants the Federal Bureau of Prisons, Harley G. Lappin, in his official capacity as director of the Federal Bureau of Prisons, and Frederick Menifee, in his official capacity as Warden of the Federal Correctional Institution — Otisville ("FCI Otisville") (collectively, the "BOP"). Cohn seeks to enjoin defendants from enforcing a BOP directive limiting pre-release community confinement to the lesser of ten percent (10%) of the offender's sentence or six months. For the reasons set forth below, Cohn's application is denied. Page 2


  Cohn was arrested on February 10, 2000, and charged in a six-count indictment with, inter alia, conspiracy to commit securities fraud, mail fraud and wire fraud, as well as the underlying substantive offenses (the "Indictment"). (Compl. ¶ 12.) On March 13, 2001, Cohn was convicted, after a guilty plea, of conspiracy to commit securities fraud in violation of 18 U.S.C. § 371, in satisfaction of the Indictment. (Declaration of Patrick W. Ward, dated January 21, 2004 ("Ward Decl."), Ex. C: Judgment of Conviction.) On October 30, 2002, District Judge Robert W. Sweet sentenced Cohn to a twenty-one month term of incarceration, followed by a three year term of supervised release. (Ward Decl. Ex. C.)

  On December 13, 2002, then-Deputy Attorney General Larry D. Thompson was advised by the Department of Justice's Office of Legal Counsel ("OLC") that the BOP's long-standing policy of interpreting the term "imprisonment" to encompass community confinement was unlawful (the "OLC Memorandum"). (Declaration of Lara K. Eshkanazi, dated January 28, 2004 ("Eshkanazi Decl."), Ex. A: OLC Memorandum, at 1 ("When an offender has received a sentence of imprisonment, the [BOP] does not have general authority . . . to place such an offender in community confinement at the outset of his sentence or to transfer him from prison to community confinement at any time BOP Page 3 chooses during the course of his sentence.").) Among other things, the OLC Memorandum sought to redefine the BOP's practices under 18 U.S.C. § 3624(c), which provides that, with respect to pre-release custody, often referred to as "back end placement":
The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community.
18 U.S.C. § 3624(c).
  Prior to December 2002, the BOP followed a practice that permitted it to transfer inmates to a community confinement center ("CCC") for up to the last six months of their sentences, regardless of whether the time in the CCC exceeded ten percent of the underlying sentence. (Declaration of Fredrick Menifee, dated January 21, 2004 ("Menifee Decl.") ¶¶ 4, 6.) With respect to this practice, the OLC Memorandum asserted that:
The authority conferred under section 3624(c) to transfer a prisoner to a non-prison site is clearly limited to a period "not to exceed six months, of the last 10 per centum of the time to be served," 18 U.S.C. § 3624, and we see no basis for disregarding this time limitation.
(Eshkanazi Decl. Ex. A at 6 n.6.)
  On December 16, 2002, Deputy Attorney General Thompson adopted the OLC's opinion, and forwarded it to Kathleen Hawk Page 4 Sawyer, Director of BOP, with a memorandum (the "Thompson Memorandum") stating that:
[W]hile BOP does have limited statutory authority in 18 U.S.C. § 3624 (c) to transfer an offender to a CCC prior to his release so as to "afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community," there are firm restrictions on such transfers. Specifically, the transfer may not exceed the lesser of (i) the last ten percent of the sentence imposed on the offender, i.e., the period of time in which the offender was committed to the custody of the BOP, or (ii) six months. The OLC opinion concludes that there are no bases for disregarding these time limitations.
(Eshkanazi Decl. Ex. B: Thompson Memorandum, at 2.) In light of the Thompson Memorandum, on December 30, 2002, Warden Menifee issued a Memorandum for Inmate Population of FCI Otisville advising that, effective December 20, 2002, BOP had changed its procedures for designating inmates to CCCs. (Eshkanazi Decl. Ex. C: Memorandum for Inmate Population.) Specifically, Warden Menifee advised that "pre-release CCC designations are now limited in duration to the last 10% of an inmate's prison term to be served, not to exceed six months. This limitation complies with 18 U.S.C. [§] 3624(c)." (Eshkanazi Decl. Ex. C.)

  On January 2, 2003, Cohn began serving his sentence at FCI Otisville. (Ward Decl. Ex. B.) Assuming Cohn receives all available good conduct credits, his projected release date is July 10, 2004. (Ward Decl. Ex. B.) Applying the lesser of six Page 5 months or 10% of his sentence yields a pre-release CCC transfer date of no sooner than May 17, 2004. (Ward Decl. Ex. G.)*fn1

  On January 9, 2004, Cohn filed this action, arguing that under 18 U.S.C. § 3621 (b), the BOP has discretion to designate him to serve more than 10% of his sentence of imprisonment in a CCC. On January 21, 2004, this Court issued an order to show cause why a preliminary injunction should not be granted. (Order to Show Cause, dated January 21, 2004.) By Stipulation and Order dated January 30, 2004, the parties agreed that Cohn's motion and petition would resolve the entire matter. (Stipulation and Order, dated January 30, 2004.)


  Cohn argues that the OLC's December 2002 interpretation, as applied by the BOP: (1) is based on an erroneous interpretation of the statute; (2) violates the Administrative Procedure Act (the "APA"), 5 U.S.C. § 551, et seq., because the BOP failed to provide a 30-day notice and comment period; and (3) violates the ex post facto clause of the United States Constitution, U.S. Const. Art. I, § 10, because it constitutes an impermissible retroactive punishment. Cohn Page 6 employs a potpourri of procedural mechanisms — including a motion for a preliminary and permanent injunction, a writ of mandamus, and/or a declaratory judgment — to secure an order directing the BOP to review his eligibility for designation to a CCC "pursuant to the BOP's pre-December 20, 2002 statutes, rules, regulations, policies, practices, procedures, and criteria." (Compl. at 12.)

 I. Subject Matter Jurisdiction

  As a threshold matter, the BOP argues that this Court lacks subject matter jurisdiction to entertain Cohn's petition. Specifically, the BOP argues that writs of habeas corpus and mandamus are "extraordinary remedies" that are to be reserved for situations in which a court, in the case of a habeas petition, perceives a severe restraint on petitioner's liberty, or, in the case of a mandamus petition, in which the government has clearly usurped power or abused its discretion. The BOP's arguments are without merit. A petition for a writ of habeas corpus under 28 U.S.C. § 2241 is the proper vehicle for challenging the execution of the sentence of a person in federal custody, or a person sentenced for violating a federal criminal statute.*fn2 See, e.g., Page 7 Maleng v. Cook, 490 U.S. 488, 493 (1989); Villanueva v. United States, 346 F.3d 55, 63 (2d Cir. 2003); Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997). Indeed, a number of courts in this district and elsewhere have permitted challenges to the BOP's 10% policy under § 2241. See, e.g., Zucker v. Menifee, No. 03 Civ. ...

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