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FRICKER v. MENEFEE

United States District Court, S.D. New York


May 11, 2004.

ROBERT A. FRICKER, Petitioner
v.
FREDERICK MENEFEE, Respondent

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

I. INTRODUCTION

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 the court.

  II. BACKGROUND

  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.

  III DISCUSSION

 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 prisoner's sentence.

  "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.

 Controlling Precedent

  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.

 Mootness

  "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.

  IV. RECOMMENDATION

  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 RECOMMENDATION

  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).

20040511

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