Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


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. Page 3

  Prior Proceedings

  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 Page 4 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

  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. Page 5

  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. Page 6 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 Page 7 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." Page 8

 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 Page 9 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 Substantial Deference

  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 warrant Page 10 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 (1988)).

  BOP's Interpretation of § 3621(b) and § 3624(c) is Erroneous

  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 Page 11 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 Page 12 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 § 3624(c) states:

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 community. Page 13


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 families.
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, 470 (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] Page 13 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 circumstances, Page 15 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.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.