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July 13, 2004.

FREDERICK MENIFEE, Warden of FCI Otisville, Respondent.

The opinion of the court was delivered by: DENISE COTE, District Judge


A December 2002 change in Bureau of Prisons ("BOP") policy has generated considerable litigation. Effective December 20, 2002, BOP policy prevents prisoners from being placed in community confinement for any period longer than the final ten percent of their terms of imprisonment (the "December 2002 Policy"). Previously, an inmate was considered eligible for six months of community confinement even if six months constituted more than ten percent of his term of imprisonment. Because the petitioner's sentence is longer than six years, he is not affected by the change and lacks standing to bring this challenge. On February 20, 2004, pro se petitioner Dennis Sanders ("Sanders") filed this petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2241, and for a preliminary injunction and temporary restraining order pursuant to Rules 65(a) and 65(b), Fed.R.Civ.P. Sanders is currently serving a sentence of 123 months' imprisonment at FCI Otisville and is due to be released on July 29, 2005.*fn1 He claims that he is entitled to be considered for six months of placement in a community corrections center ("CCC") as well as six months of home confinement prior to his release. Sanders argues that the Respondent's refusal to consider him for a two-part, twelve-month placement results from the December 2002 change in the policy by which the Bureau of Prisons designates inmates to CCCs. He contends that the December 2002 Policy violates federal statutes authorizing the BOP to designate the place of a prisoner's imprisonment, 18 U.S.C. § 3621(b) ("Section 3621(b)"), and to assure that a prisoner is prepared for re-entry into the community, 18 U.S.C. § 3624(c) ("Section 3624(c)"), as well as the Administrative Procedure Act, 5 U.S.C. § 551, et seq. In addition, Sanders claims that it is impermissible to apply the December 2002 Policy retroactively to him.

  The Respondent opposed Sanders' application on March 22, 2004, and Sanders replied on April 29. A June 17 Order outlined the Court's obligation to satisfy itself that subject matter jurisdiction exists over this action and permitted the parties to file additional submissions by July 2 on the issue of Sanders' standing to pursue this claim for relief. The Respondent submitted the declaration of Edward G. Hughes ("Hughes"), the BOP's Community Corrections Administrator for the Northeast Region. For the following reasons, Sanders' petition and request for a preliminary injunction and temporary restraining order are denied.


  Sanders pleaded guilty in the United States District Court for the District of Connecticut to carrying a firearm in relation to a drug offense, in violation of 18 U.S.C. § 924(c)(1), and to possession with intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). On February 6, 1997, he was sentenced to consecutive prison terms of sixty and sixty-three months, followed by four years of supervised release. Sanders began serving his sentence on March 10, 1997.

  Congress requires the BOP to ensure that inmates are allowed a reasonable opportunity to adjust to life in the community prior to their release, providing that
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. The authority provided by this subsection may be used to place a prisoner in home confinement.
18 U.S.C. § 3624(c) (emphasis supplied). As described in BOP Program Statement 7310.04, Community Corrections Center (CCC) Utilization and Transfer Procedure (the "CCC Statement"), BOP staff are encouraged to establish a release plan approximately eleven to thirteen months prior to an inmate's projected release date. If BOP staff determine that a community placement is appropriate, they make a recommendation to a Community Corrections Manager ("CCM") who reviews the inmate's characteristics and any staff recommendations to determine whether placement in a traditional CCC or in an alternative program, such as home confinement, is appropriate. The guidelines in BOP Program Statement 7320.01, Home Confinement, maintain that "only in the most extraordinary circumstances" will the BOP consider placing an inmate in home confinement rather than a traditional CCC.

  Before December 2002 ("pre-December 2002 Policy"), BOP practice ordinarily permitted a prisoner to be placed in a community-based program for a period longer than the last ten percent of his term of imprisonment, not to exceed a maximum of six months. The CCC Statement provides for inmate placement up to 180 days, "with placement beyond 180 days highly unusual, and only possible with extraordinary justification" and approval from the BOP Regional Director and the Chief United States Probation Officer in the inmate's sentencing district. It was possible for an inmate to be transferred from a CCC to home confinement, but this was done within the designated period of community placement. BOP policy and practice did not allow an inmate to be considered for two separate six-month placements in different community programs.

  On December 13, 2002, the Department of Justice's Office of Legal Counsel ("OLC") issued a memorandum opinion finding BOP's policy of placing inmates in CCCs for longer than the last ten percent of their prison terms to be inconsistent with Section 3624(c). The Deputy Attorney General forwarded the OLC opinion to the Director of the BOP on December 16, stating

[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.
On December 30, 2002, the Respondent circulated a Memorandum for Inmate Population advising that as of December 20, 2002, the BOP had changed its procedures for designating inmates to CCCs. Specifically, the warden of FCI Otisville wrote that pre-release CCC designations would be limited to the last ten percent of an inmate's prison term, not to exceed six months. This December 2002 Policy does not alter the process by which a CCM considers an inmate for home confinement.

  On or about January 20, 2004, Sanders submitted a Request for Administrative Remedy, appealing the informal denial of his application for a six-month designation to a CCC followed by six months of home confinement. He argued that he had a right to the six-month CCC placement under Section 3621(b), allowing the BOP to designate "any available penal or correctional facility" as the location of an inmate's imprisonment, and to the six months of home confinement under Section 3624(c). Sanders did not mention any extraordinary circumstances justifying a community placement in excess of six months. The Respondent denied Sanders' request on January 30, stating that Sanders is eligible for six months CCC placement and that a release plan would be prepared approximately eleven to thirteen months prior to his probable release date. The Respondent further noted that the CCM must approve the placement of any inmate in home confinement. As of March 9, 2004, Sanders had not appealed this decision to the BOP Regional Director, and he has not subsequently described any efforts to do so.


  Federal courts have an obligation to ensure that a plaintiff has standing to pursue his claim, and should resolve questions of Article III jurisdiction before reaching the merits of that claim. N.Y. Public Interest Research Group v. Whitman, 321 F.3d 316, 324-25 (2d Cir. 2003); LaFleur v. Whitman, 300 F.3d 256, 268 (2d Cir. 2002). A plaintiff bears the burden of alleging facts that demonstrate his standing since he seeks to invoke the jurisdiction of the court. Id.

  To establish standing, a plaintiff must "allege, and ultimately prove, that he has suffered an injury-in-fact that is fairly traceable to the challenged action of the defendant, and which is likely to be redressed by the requested relief." Baur v. Veneman, 352 F.3d 625, 632 (2d Cir. 2003). To satisfy the first of these three elements of standing, the plaintiff's asserted injury must be "concrete and particularized," as well as "actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (citation omitted); Baur, 352 F.3d at 632. Analysis of a plaintiff's injury focuses on whether the plaintiff is the proper party to bring suit, and requires that the alleged injury affect him "in a personal and individual way." Lujan, 504 U.S. at 560 n. 1; Raines v. Byrd, 521 U.S. 811, 818 (1997).

  Because Sanders' petition does not allege a concrete injury that is fairly traceable to the challenged action of the defendant, he lacks standing to pursue his claim for habeas relief. Sanders' contention in his petition, as well as his Request for Administrative Remedy, is that Sections 3621(b) and 3624(c) should be interpreted to allow the BOP to designate him to six months of placement in a CCC, followed by six months of home confinement. He argues that the possibility of such an interpretation has been foreclosed by the enactment of the December 2002 Policy. The successive six month placements proposed by Sanders, however, were not available under BOP policy and practice before December 2002. Even if the ...

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