United States District Court, S.D. New York
May 11, 2004.
ROBERT A. FRICKER, Petitioner
FREDERICK MENEFEE, Respondent
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
Robert Flicker ("Flicker") has made an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Through the application, Flicker
seeks immediate placement in a community confinement center ("CCC"), in
order to avoid the consequences of a change in policy adopted by the
United States Bureau of Prisons ("BOP") to conform its practices to the
statutory dictates of 18 U.S.C. § 3624(c). BOP's change in policy delays
by two months the point at which Flicker would be considered for transfer
from the Federal Correctional Institution at Otisville, New York, to a
CCC. Flicker contends that the application of the BOP policy to him is
violative of the Constitution's ex post facto provision. Moreover, he
maintains that the BOP policy is a "rule" and was adopted in
contravention of the Administrative Procedure Act rulemaking provisions,
(see 5 U.S.C. § 553), in that proper notice of and an appropriate period
for comment on the "rule" was not given to him. Furthermore, Flicker
asserts that the BOP policy is predicated upon a misinterpretation of the relevant statute and,
moreover, the policy conflicts "with controlling precedent [from] the
Southern District of New York."
The respondent opposes Fricker's application. He contends that the BOP
policy at issue corrects a previous misinterpretation of the express
language of 18 U.S.C. § 3624(c). The respondent maintains that BOP's
policy change violated neither the notice and comment provision of the
Administrative Procedure Act nor the ex post facto provision of the
Constitution. In addition, the respondent challenges the propriety of the
petitioner's use of 28 U.S.C. § 2241 to obtain the relief he seeks from
On December 13, 2002, the Office of Legal Counsel, United States
Department of Justice, issued a memorandum opinion for the deputy United
States attorney general, which advised, among other things, that a
longstanding BOP policy that allowed the agency to place low-risk
nonviolent offenders with short terms of imprisonment in CCC facilities,
either upon judicial request or sua sponte, was unlawful. Based upon the
opinion expressed in the memorandum, the deputy attorney general advised
BOP's director, so far as it is pertinent in the instant case, that a
transfer of a prisoner to a CCC facility may be for a period not to
exceed the lesser of: (a) the last ten per centum of a prisoner's
sentence; or (b) six months, as provided for in 18 U.S.C. § 3624(c).
Previously, it had been BOP's practice to consider a prisoner eligible
for placement in a CCC facility for the last six months of the prisoner's
sentence even if that period of time exceeded the last ten per centum of
the prisoner's term of imprisonment.
BOP advised its chief executives of the legal opinion memorandum and
the position of the deputy attorney general. Thereafter, on December 30,
2002, the respondent issued a memorandum to the prison population housed at the Federal Correctional
Institution at Otisville, New York, the facility at which the petitioner
was serving his sentence. Through that memoran-dum, the respondent
advised those in custody of the change in BOP policy respecting a
prisoner's eligibility for consideration for prerelease placement in a CCC
facility. The respondent explained that the change in policy was due to
the opinion issued on December 13, 2002, by the Department of Justice,
Office of Legal Counsel. Under the BOP policy in existence when Fricker
commenced his sentence, Flicker contends that he would have become
eligible for consideration for prerelease placement in a CCC facility on
February 27, 2004, that is, six months prior to the expiration of his
46-month sentence. However, Fricker maintains that his eligibility for
consideration for placement in a CCC facility will be delayed for
approximately two months because of the change in BOP policy adopted in
December 2002. It is this delay that has prompted him to request, through
the instant application, that he be placed in a CCC facility in
accordance with the BOP policy that existed prior to December 2002.
Availability of Habeas Corpus Relief
The respondent contends that an application for a writ of habeas corpus
is a request that a court grant a petitioner an extraordinary remedy.
Therefore, it is not the proper vehicle through which Fricker may
challenge the BOP's determination concerning the facility in which he
will be confined prior to his release from incarceration. The Court
disagrees. In essence, Fricker's application for a writ of habeas corpus
presents a challenge to the execution of his sentence. A challenge to the
execution of a federal prisoner's sentence may properly be raised through
an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
See Chambers v. United States, 106 F.3d 472, 473-475 (2d Cir. 1997); Villanueva v. United
States, 346 F.3d 55, 63 (2d Cir. 2003). Therefore, the Court finds that
Fricker's application for a writ of habeas corpus is within the court's
jurisdiction and may be entertained.
Ex Post Facto
Article I, Section 9 of the Constitution proscribes the passage of a
bill of attainder or an ex post facto law. "The ex post facto prohibition
forbids the Congress and the States to enact any law `which imposes a
punishment for an act which was not punishable at the time it was
committed; or imposes additional punishment to that then prescribed.'"
Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964 (1981)(citations
omitted). In the case at bar, petitioner does not claim that any law was
enacted that punishes some conduct that previously was not subject to
punishment or that a law was enacted that imposes additional punishment on
him beyond that which was imposed at the time he was sentenced. Rather,
petitioner alleges that the policy adopted by BOP, that merely requires it
to conform its practices to the express language found in
18 U.S.C. § 3624(c), violates the Ex Post Facto Clause because, as
applied to him, the new policy eliminates "a discretionary benefit," that
is, the eligibility to be considered for prerelease placement in a CCC
for six months without regard to whether placement in a CCC for that
period of time exceeds a period equivalent to the last ten per centum of a
"Where, as here, Congress has delegated authority to an agency to
administer a statute but not to issue rulings with the binding effect of
law, courts must afford that agency's interpretations `some deference'
where they constitute `a permissible construction of the statute.'" Cohn
v. Federal Bureau of Prisons, 302 F. Supp.2d 267, 271 (S.D.N.Y.
2004)(citations omitted). Congress has authorized BOP to administer
18 U.S.C. § 3624. Consequently, its interpretation of the statute must be accorded some deference. See Cohn, 302 F. Supp.2d
at 271. As noted above, BOP's pre-December 2002 policy concerning the
prerelease placement of a prisoner in a CCC facility for six months,
regardless of whether that period of time exceeded ten per centum of the
sentence remaining to be fulfilled by the prisoner, was in tension with
the expressive language of the relevant statute. Fricker appears to
contend that he had a vested right to be placed in a CCC for the final
six months of his sentence even if that period of time would be greater
than ten per centum of the portion of his sentence that remained to be
served. The Court rejects Fricker's view because "[n]obody has a vested
interest in violation of the law no matter how long continued." Adler v.
Menifee, 293 F. Supp.2d 363, 367 (S.D.N.Y. 2003). Moreover, an agency is
free to revisit policies it has adopted over time and to revise those
policies when it determines it is reasonable and appropriate to do so. See
Chevron v. Natural Resources Defense Council Inc., 467 U.S. 837,
863-864, 104 S.Ct. 2778, 2792 (1984). When an agency determines to change
its policy because of a new interpretation of a statute, its
interpretation of the statute is still entitled to some deference from a
court. This is so notwithstanding the fact that the new interpretation
upsets a longstanding agency policy. See Rust v. Sullivan, 500 U.S. 173,
186, 111 S.Ct. 1759, 1769 (1991). Since BOP's December 2002 policy does
not lengthen Fricker's period of incarceration and does no more than give
effect to the express language of 18 U.S.C. § 3624(c), the Court finds
that the Ex Post Facto Clause of the Constitution is not implicated.
Therefore, Fricker is not entitled to habeas corpus relief based upon
this branch of his petition.
Administrative Procedure Act
Fricker contends that the BOP policy adopted in December 2002 was a
"rule." Moreover, he maintains that the policy was implemented by the
respondent without notice to the petitioner and without giving him any opportunity to comment upon the new policy
prior to its implementation. According to Fricker, the respondent acted in
violation of the Administrative Procedure Act. See 5 U.S.C. § 553.
"Section 553 provides, generally, that an agency must publish notice of
a proposed rulemaking in the Federal Register and afford `interested
persons an opportunity to participate . . . through submissions of written
data, views, or arguments.'" Lincoln v. Vigil, 508 U.S. 182, 195,
113 S.Ct. 2024, 2033 (1993)(citing 5 U.S.C. § 553[b], [c]). Typically, an
agency is required to publish the new rule not less than thirty days
before it is to take effect. Furthermore, the agency is required to
incorporate into the notice a concise, general statement of the rule's
bases and purpose. See 5 U.S.C. § 553(c), (d). The statute's notice and
comment provisions are not applicable to "interpretive rules, general
statements of policy, or rules of agency organization, procedure, or
practice." 5 U.S.C. § 553(b)(3)(A). The Second Circuit Court of Appeals
has explained that an interpretive rule sets forth an agency's "intended
course of action, its tentative view of the meaning of a particular
statutory term, or internal house-keeping measures organizing agency
activities." Perales v. Sullivan, 948 F.2d 1348, 1354 (2d Cir.
1991)(quoting Batterton v. Marshall, 648 F.2d 694, 701-702 [D.C. Cir.
1980]). That court has also explained that a substantive rule "grant[s]
rights, impose[s] obligations or produce[s] other significant effects on
private interests." See id. at 1354. Here, BOP did no more than correct
its previous misinterpretation of an existing statute, 18 U.S.C. §,
3624(c). Therefore, its December 2002 policy was, in effect, an
interpretive rule not subject to the notice and comment requirements
found at 5 U.S.C. § 553. See Shalala v. Guernsey Memorial Hospital,
514 U.S. 87, 99, 115 S.Ct. 1232, 1239 (1995)(finding that an agency's
construction of a statute it administers is an interpretive rule not subject to the notice and comment requirements
of the Administrative Procedure Act).
Based on the above, the Court finds that Flicker is not entitled to the
relief he seeks, through the instant application, since he has not
established that BOP violated the Administrative Procedure Act when it
adopted its December 2002 policy without providing him notice of the
proposed change in policy and an opportunity to comment upon the new
policy before it was implemented.
BOP's Policy Misinterprets Statute
Flicker contends that BOP's December 2002 policy is premised on a
"defective interpretation of the law," because the agency no longer views
placement in a CCC facility to be the equivalent of "imprisonment."
According to Flicker, the agency's failure to recognize that placement in
a CCC facility is imprisonment as contemplated by 18 U.S.C. § 3621 is
a misinterpretation of that statute and the discretionary authority that
the statute confers on BOP to make prisoner placement determinations.
Congress has authorized BOP to exercise its discretion in determining
the place of a prisoner's imprisonment. "The bureau may designate any
available penal or correctional facility that meets minimum standards of
health and habitability established by the bureau, whether maintained by
the Federal Government or otherwise and, whether within or without the
judicial district in which the person was convicted, that the bureau
determines to be appropriate and suitable. . . ." 18 U.S.C. § 3621(b).
Flicker alleges that BOP may exercise its discretion to place a prisoner
in a CCC facility to "meet the imprisonment component of [a prisoner's
sentence]." While 18 U.S.C. § 3621 provides a general grant of authority
to BOP to determine the place where a prisoner will be imprisoned to serve the prisoner's sentence,
that general grant of authority is tempered by the express language of
18 U.S.C. § 3624(c), which limits BOP's authority to assign a prisoner to
a CCC facility for a period that does not exceed six months of the last
ten per centum of the prisoner's sentence.
As noted above, some deference must be given to BOP's interpretation of
the statute it is required to administer. Deference is particularly
warranted in this case inasmuch as BOP's interpretation of
18 U.S.C. § 3621(b) and 3624(c) is in harmony with the "basic principle
of statutory construction that a specific statute [18 U.S.C. § 3624(c)]
controls over a general provision [18 U.S.C. § 3621(b)]." HCSC Laundry
v. United States, 450 U.S. 1, 6, 101 S.Ct. 836, 839 (1981). There is no
reason to conclude that BOP's December 2002 policy was premised, as
claimed by the petitioner, upon a defective interpretation of the law.
Therefore, Flicker is not entitled to habeas corpus relief based on his
claim that BOP has misinterpreted a statute in formulating its policy.
Flicker alleges that other prisoners or former prisoners of the Federal
Correctional Institution at Otisville, New York, have made successful
challenges, in this judicial district, to BOP's December 2002 policy.
Therefore, he maintains he is entitled to the relief he seeks through the
instant application based upon "controlling precedent for the Southern
District of New York." Fricker is wrong.
A decision reached by one district court does not control the decision
of another district court since they are courts of coordinate
jurisdiction. See Firemen's Ins. Co. of Newark, New Jersey v. Keating,
753 F. Supp. 1146, 1156 n.10 (S.D.N.Y. 1990). Furthermore, as the
respondent makes clear, Flicker ignores decisions emanating from this judicial
district that support BOP's interpretation of the relevant statutes
premised upon the legal opinion memorandum prepared by the Department of
Justice, Office of Legal Counsel. In any event, Fricker's misapprehension
about the decisions of courts of coordinate jurisdiction does not entitle
him to habeas corpus relief.
"A case becomes moot when interim relief or events have eradicated the
effects of the defendant's act or omission, and there is no reasonable
expectation that the alleged violation will recur." The Irish Lesbian and
Gay Organization v. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998). After
this matter was referred to the Court in March, and before the April
deadline fixed by the Court for the parties to make written submissions
in support of and in opposition to the petitioner's application for a
writ of habeas corpus had expired, the petitioner was placed in a CCC
facility in accordance with 18 U.S.C. § 3624(c). Article III of the
Constitution permits federal courts to resolve live cases and
controversies. Therefore, when a court's decision on the merits of a
claim cannot affect the rights of the parties to the action before it,
because the issue in dispute has become moot, the court is without
authority to entertain the matter. See Liner v. Jafco, Inc., 375 U.S. 301,
306 n.3, 84 S.Ct. 391, 394 n.3 (1964). Such is the case with respect to
the instant petition.
For the reasons set forth above, the petitioner's application for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2241, should be denied. V. FILING OF OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules
of Civil Procedure, the parties shall have ten (10) days from service of
this Report to file written objections. See also Fed.R.Civ.P. 6. Such
objections, and any responses to objections, shall be filed with the
Clerk of Court, with courtesy copies delivered to the chambers of the
Honorable Barbara S. Jones, 40 Foley Square, Room 2103, New York, New
York 10007, and to the chambers of the undersigned, 40 Foley Square, Room
540, New York, New York 10007. Any requests for an extension of time for
filing objections must be directed to Judge Jones. FAILURE TO FILE
OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND
WELL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985);
IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);
Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair
Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234,
237-38 (2d Cir. 1983).
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