United States District Court, S.D. New York
March 4, 2004.
CHARLES DISTEFANO, Petitioner-Plaintiff, -against- THE FEDERAL BUREAU OF PRISONS, HARLEY G. LAPPEN, in his official capacity as Director of the Federal Bureau of Prisons, and FREDERICK MENIFEE, in his official capacity as the Warden of FCI Otisville, Respondents-Defendants
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 2
Charles DiStefano ("DiStefano"), who is currently incarcerated at the
Federal Correctional Institution in Otisville, New York ("FCI
Otisville"), has petitioned for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 and § 2255 and for a writ in the nature of mandamus
pursuant to 28 U.S.C. § 1361, and has moved for a preliminary
injunction under Fed.R.Civ.P. 65(b), and for a declaratory judgment
under 28 U.S.C. § 2201. DiStefano also requests, in the alternative
to emergency injunctive relief, that his sentence be corrected under Fed.
R. Crim. P. 36.
DiStefano challenges the determination of the warden of FCI Otisville
that he can spend no more than the final ten percent of his 21-month
sentence in a Community Corrections Center ("CCC"). DiStefano argues that
this determination was based on the implementation of a new policy by
the Federal Bureau of Prisons ("BOP") which mandated that pre-release
designation to CCCs would be limited to the last 10% of an inmate's
prison term, not to exceed six months (the "10% Rule"). The policy change
was prompted by a December 13, 2002 Memorandum Opinion from the
Department of Justice's Office of Legal Counsel which concluded,
inter alia, that the prior practice of allowing all inmates to
be eligible to serve the last six months of their sentence in a CCC,
regardless of the total length of the sentence. For the reasons set forth
below, DiStefano's request for injunctive relief is granted.
On March 21, 2001, DiStefano pleaded guilty to one count of conspiracy
to commit securities, mail and wire fraud in violation of
18 U.S.C. § 371. See United States v. DiStefano, 00 Cr. 91-08, 2002 WL
31426023 (S.D.N.Y. Oct. 28, 2002). On October 28, 2002, DiStefano was
sentenced by this Court to a 21 month term of incarceration, followed by
a three-year term of supervised release. Id. at *13. DiStefano
commenced serving his sentence on March 7, 2003.
On January 5, 2004, DiStefano filed a Complaint and Petition for a Writ
of Habeas Corpus as well as an Order to Show Cause. After submission of
briefs, oral argument was heard on February 4, 2004, at which time the
motion was deemed fully submitted.
At the time that DiStefano was sentenced, the usual practice of BOP was
to consider prisoners for placement in CCCs for as much as the last six
months of their sentences, even if this occurred before the prisoner's
10% date. The Office of Legal Counsel, however, declared this practice
unlawful and stated that BOP has statutory authority to transfer
prisoners to CCCs only for the lesser of the last 10 percent or six
months of their good-time-adjusted
sentences. See Op. Off. Legal Counsel, "Bureau of Prisons
Practice of Placing in Community Confinement Certain Offenders Who Have
Received Sentences of Imprisonment," December 13, 2002 (available on the
Internet at http://www.usdoj.gov/olc/bopimprisonment2.htm).
On December 20, 2002, BOP issued a memorandum addressed to "Chief
Executive Officers" stating: "Effective immediately . . . [p]re-release
programming CCC designations are limited in duration to the last 10% of
the prison sentence, not to exceed six months." Federal Bureau of
Prisons, U.S. Department of Justice, "Community Confinement Procedure
Changes." (the "BOP Memorandum"). It further stated that the "procedure
changes are the result of a recent legal opinion issued by the U.S.
Department of Justice, Office of Legal Counsel (OLC), which analyzes the
Bureau's statutory authority to designate inmates to CCCs as more limited
than we have previously practiced." Id.
DiStefano reports that following his surrender at FCI Otisville, he has
been assigned jobs at the institution and has consistently received
outstanding work evaluations from the prison staff. He also reports that
he has not received a single infraction since his imprisonment and has
been a model inmate who has gained the respect and trust of both inmates
and prison staff.
Assuming DiStefano receives all Good Conduct Time credits available,
his projected release date is September 13, 2004. Under BOP's old policy
and practice, DiStefano would become eligible for placement in a CCC on
March 13, 2004. Relying on this projected release date under the new
policy, the date when DiStefano would have the lesser of six months or
ten percent of his sentence remaining is July 21, 2004, and would only
become eligible for transfer to a CCC on that date.
DiStefano argues that the OLC's December 2002 interpretation, as
applied by BOP: (1) is based on an erroneous interpretation of the
statute; (2) violates the Administrative Procedure Act PAPA"),
5 U.S.C. § 551, et seq., because BOP failed to provide a 30-day
notice and comment period; and (3) violates the Ex Post Facto clause of
the United States Constitution, Art. I, § 10, because it constitutes
impermissible retroactive punishment.
Subject Matter Jurisdiction
BOP argues that the Court lacks subject matter jurisdiction under
both the habeas statutes, 28 U.S.C. § 2241, 2255 and the mandamus
statute, 28 U.S.C. § 1361. BOP argues that habeas corpus is an
"extraordinary remedy" that should only be "available to those Awhom
society has grievously wronged.'" Calderon v.
Coleman, 525 U.S. 141, 146, 119 S.Ct. 500,
142 L.Ed.2d 521 (1998) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623,
113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). BOP also argues that "[t]he
remedy of mandamus is a drastic one and is to be invoked only in
extraordinary situations." In re Petition of Singer, 97 Civ.
2365, 1997 WL 685343, at *2 (S.D.N.Y. Nov. 3, 1997). The decision of the
court in Zucker v. Menifee, 03 Civ. 10077, 2004 WL 102779, at
*3 (S.D.N.Y. Jan. 21, 2004), addressing an identical challenge to BOP's
policy, is persuasive that "jurisdiction over this matter is authorized
by precedent and by the unrestrictive language of the jurisdictional
statutes, 28 U.S.C. § 2241 and 1361." Zucker holds that
§ 2241 "has long been recognized as the basis for challenging the
execution of the sentence of a person in federal custody or a person
sentenced for violating a federal criminal statute." Id.
(citing cases); see also Cohn v. Federal Bureau of Prisons, 04
Civ. 192, 2004 WL 240570, at *3 (S.D.N.Y. Feb. 10, 2004) (same).
Similarly, "jurisdiction under § 1361 is clear on the face of the
statute, which grants the district courts `original jurisdiction of any
action in the nature of mandamus to compel an officer or employee of the
United States or any agency thereof to perform a duty owed to the
plaintiff.'" Zucker, 2004 WL 102779, at *3 (quoting §
1361). BOP's argument that DiStefano does not have a clear right to the
relief he seeks, see Billitieri v. United States Bd of Parole,
541 F.2d 938, 946 (2d Cir. 1976), goes to the
question whether a writ of mandamus will issue, not to whether the
Court has jurisdiction to hear the matter.*fn1
Because jurisdiction is available under both § 2241 and § 1361,
it is not necessary to consider whether DiStefano may also bring a claim
for a declaratory judgment under 28 U.S.C. § 2201.
Preliminary Injunction Standard
A preliminary injunction is an "extraordinary and drastic remedy, one
that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion." Mazurek v.
Armstrong, 520 U.S. 968, 972, 117 S.Ct 1865, 138 L.Ed.2d 162 (1997)
(emphasis in original) (quoting 11A C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure § 2948, pp. 129-130 (2d
ed.1995)). In the ordinary case,
a preliminary injunction may be granted only when
the party seeking the injunction establishes that
"1) absent injunctive relief, it will suffer
irreparable harm, and 2) either a) that it is
likely to succeed on the merits, or b) that there
are sufficiently serious questions going to the
merits to make them a fair ground for litigation,
and that the balance of hardships tips decidedly
in favor of the moving party."
No Spray Coalition, Inc. v. City of New York,
252 F.3d 148, 150 (2d Cir. 2001) (quoting Otokovama Co. Ltd, v. Wine of Japan
Import, Inc., 175 F.3d 266, 270 (2d Cir. 1999)). Where, as here, the
movant seeks a preliminary injunction "that will affect `government
action taken pursuant to a statutory or regulatory scheme, the injunction
should be granted only if the moving party meets the more rigorous
likelihood-of-success standard.'" Id. (quoting Beal v.
Stern, 184 F.3d 117, 122 (2d Cir. 1999)).
DiStefano argues that his family circumstances satisfy the irreparable
injury prong. DiStefano's children will be without his financial support
during the approximately four months when he would be eligible to be
designated to a CCC under BOP's previous policy but not under the 10%
Rule. DiStefano had previously requested that his surrender date be
deferred so that he could make enough money to provide for his family
during his absence. The surrender date he requested was based on the
assumption that he could begin working six months before the end of his
sentence. Other challenges to the 10% Rule have found irreparable injury
under similar circumstances. See e.g., Ashkenazi v.
Attorney General of the United States, 246 F. Supp.2d 1, 9-10
(D.D.C. 2003) ("Plaintiff would certainly suffer irreparable harm as a
result of confinement in a prison, rather than in a CCC," because "he
will be unable to care for his wife who suffered life threatening
injuries for which she continues to require surgery and on-going medical
care and attend to his business if he is confined in a
federal prison."). Because BOP does not appear to contest the issue
of irreparable injury, it is deemed to be satisfied.
BOP's Interpretation of the Statute is Not Entitled to
DiStefano has alleged that the BOP has erroneously interpreted
18 U.S.C. § 3621(b) and 3624(c), which define the scope of BOP's
discretionary authority to designate a CCC as the place where a federal
prisoner may serve all or part of his or her sentence.
BOP argues that because it is the agency charged with administering
both § 3621(b) and § 3624(c), its interpretation of these
statutes is entitled to substantial deference. See Rust v.
Sullivan. 500 U.S. 173, 184, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991).
While "some deference," should be accorded to BOP's interpretation of the
statute, provided that it is a "permissible construction of the statute,"
substantial deference is not appropriate because the interpretation was
not "subject to the rigors of the Administrative Procedure Act, including
public notice and comment." Reno v. Koray, 515 U.S. 50, 60-61,
115 S.Ct. 2021, 132 L.Ed.2d 46 (1995). See also Christensen v.
Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621
(1999) ("Interpretations such as those in opinion letters like
interpretations contained in policy statements, agency manuals, and
enforcement guidelines, all of which lack the force of law do not
Chevron-style deference."). Instead, BOP's interpretation is
entitled to "respect proportional to its power to persuade," and "may
surely claim the merit of its writer's thoroughness, logic, and
expertness, its fit with prior interpretations, and any other source of
weight." United States v. Mead Corp., 533 U.S. 218, 235,
121 S.Ct. 2164, 150 L.Ed.292 (2001); see also Zucker, 2004 WL
102779, at *5. Further, "[a]s a general matter . . . the case for
judicial deference is less compelling with respect to agency
interpretations that are inconsistent with previously held views."
Pauley v. Beth-Energy Mines, 501 U.S. 680, 698, 111 S.Ct. 2524,
115 L.Ed.2d 604 (1991) (citing Bowen v. Georgetown Univ.
Hospital, 488 U.S. 204, 212-13, 109 S.Ct. 468, 102 L.Ed.2d 493
BOP's Interpretation of § 3621(b) and § 3624(c) is
The issue of the proper interpretation of § 3621(b) and §
3624(c) has been considered by over a dozen district courts throughout the
country in the wake of BOP's implementation of the 10% Rule. See
Colton v. Ashcroft, F. Supp.2d , 2004 WL 86430, at *9
(E.D.Ky. Jan. 15, 2004) (collecting cases). Among the most thorough and
thoughtful of these considerations are found in Zucker and
Monahan v. Winn, 276 F. Supp.2d 196 (D. Mass. 2003), both of
which found that the interpretation of the two relevant statutes
contained in the OLC Opinion and implemented in the BOP Memorandum were
contrary to the plain meaning of the statutes. See Zucker, 2004
WL 102779, at *6-*11; Monahan, 276 F. Supp.2d at 205-12. Both
decisions respond to each of the arguments made by BOP in the
instant case. The reasoning of both cases, which is adopted here, may be
summarized as follows:
First, the language of 18 U.S.C. § 3621(b), which provides that BOP
"shall designate the place of the prisoner's imprisonment," and that BOP
"may designate any available penal or correctional facility . . . that
[BOP] determines to be appropriate and suitable" encompasses CCCs as well
as prisons. The line of cases finding that confinement in a CCC was not
"imprisonment" as that term is used in § 5C1.1 of the U.S. Sentencing
Guidelines is not dispositive because "judicial interpretation of a term
in a Sentencing Guideline provision cannot ground interpretation of the
same term in a federal statute." Zucker, 2004 WL 102779, at *7;
Monahan, 276 F. Supp.2d at 207-08. Further, even § 5C1.1 of
the Guidelines is equivocal on whether the CCC counts as imprisonment.
The OLC itself, in a 1992 opinion, held that there is "no basis in
section 3621(b) for distinguishing between residential community
facilities and secure facilities." Zucker, 2004 WL 102779, at
*6 (quoting Statutory Authority to Contract with the Private Sector
for Secure Facilities, 16 Op. Off. Legal Counsel 65 (March 25,
1992)). Support for the broad view of BOP's general authority to
designate a CCC as a place of imprisonment can also be found implicitly
in Koray, which held that "in calculating service of a `term of
imprisonment' under 18 U.S.C. § 3585, it is proper to
include all time that a prisoner is detained in a CCC in the
custody" of BOP. Id. at *7 (citing Koray, 515 U.S. at
58). The legislative history of what is now § 3621 also gives support
to this reading. See id. at *8-*9.
Second, § 3624(c) does not limit BOP's authority to place a
prisoner in a CCC; instead it mandates that each prisoner should have the
opportunity to be placed in conditions which will help ease the
petitioner's transition out of prison. The relevant language of §
Pre-release custody. 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 reentry into the community. The
authority provided by this section may be used to
place the prisoner in home confinement.
18 U.S.C. § 3624(c). While both Zucker and
Monahan provide a number of compelling arguments in aid of the
interpretation that § 3624(c) does not restrict the authority of
§ 3621(b) to the lesser of six months or the last 10% of the
prisoner's sentence, the following best encapsulates the respective
conclusions of the two courts, as well as others:
As the court reads this subsection, Congress is
directing the Bureau to do its level best to
assure that everyone who has served time get a
decent opportunity to go through a period of
readjustment before being thrust back into the
Yet, the Government would have the court read this
section as a stiff curb on the Bureau's ability to
make such placements at all. The court finds this
reading to be implausible. The statute clearly
emphasizes the Bureau's duty to ensure a
reasonable opportunity for a period of adjustment.
It aims to relieve the burdens of direct release
on our communities, the inmates, and their
Monahan, 276 F. Supp.2d at 212 (quoting Howard v.
Ashcroft, 248 F. Supp.2d 518, 544 (M.D.La. 2003) and Ferquson
v. Ashcroft, 248 F. Supp.2d 547, 572 (M.D.La. 2003)). Both
Monahan and Zucker, as well as Howard and
Ferguson, draw support for their reading on the Tenth Circuit,
which held that its
interpretation of § 3624(c) as a legislative
directive focusing on the development of
conditions to facilitate the inmate's adjustment
to free society, whatever the institution of
pre-release confinement, accepts as a premise that
the broader statutory scheme concerning the
Bureau's general placement authority remains
intact and effective.
Prows v. Federal Bureau of Prisons, 981 F.2d 466
(10th Cir. 1992) (quoted in Howard, 248 F. Supp.2d at 544;
Ferguson, 248 F. Supp.2d at 572; Zucker, 2004 WL
102779, at *10; and Monahan, 276 F. Supp.2d at 210).
In light of the persuasive decisions by Zucker and
Monahan, as well as others, it is determined that the
interpretation of § 3621(b) and § 3624(c) by the OLC, and the
subsequent policy put in place by the BOP Memorandum, is "in conflict
with plain meaning, agency practice, and legislative history, and [is]
therefore not entitled to judicial endorsement." Zucker,
2004 WL 102779, at *11. It is therefore determined that DiStefano is
likely to succeed on the merits of his claim. Accordingly, BOP is hereby
directed to exercise its authority to consider DiStefano for CCC
placement in accordance with the correct interpretation of the statute.
See McCarthy v. Doe, 146 F.3d 118, 122-23 (2d Cir. 1998)
(ordering BOP to review petitioner's request, "and [to] grant or deny the
request in accordance with the discretion afforded the Bureau by §
3621(b)," after finding that BOP's interpretation of 18 U.S.C. § 3584
(a) was incorrect). It is therefore unnecessary to reach the issues of
whether the implementation of the 10% Rule violates the APA, whether the
application of the Rule to DiStefano constitutes impermissible
retroactive punishment, or whether DiStefano's sentence may be corrected
under Fed.R.Crim.P. 36.
For the reasons set forth above, the Court invokes its power under
28 U.S.C. § 1651, the All Writs Act, to issue a writ in the nature of
mandamus compelling Frederick Menifee, the Warden of FCI Otisville to act
promptly and in good faith to consider DiStefano for placement in a CCC
consistent with the BOP policy and practice in place prior to December
20, 2002. If it was part of BOP's prior policy and practice to take into
account the prison record of the prisoner and/or his family and financial
BOP is directed to take these factors into account in considering
DiStefano for placement in a CCC.
This "ruling does not require the Bureau to grant petitioner's request
for [CCC] designation, but only to give that request full and fair
consideration." McCarthy, 146 F.3d at 123. However, the Court
reserves the right to grant a writ of habeas corpus in the event that it
is found that BOP has abused the discretion granted to it under §
3621(b). See id. at 123 n.4; see also Billitieri 541
F.2d at 944 (noting that it is within the court's power to "order the
Board [of Parole] to correct the abuses or wrongful conduct within a
fixed period of time, after which, in the case of non-compliance, the
court can grant the writ of habeas corpus and order the prisoner
discharged from custody."). Because DiStefano would become eligible for
CCC placement on March 13, 2004 under the prior policy, BOP is directed
to consider him for placement by that date.
It is so ordered.