United States District Court, S.D. New York
November 1, 2004.
GENE P. TERRY, Petitioner,
FREDRICK MENIFEE, Warden, Federal Correctional Institution Otisville, New York, Respondent.
The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District
OPINION AND ORDER
Gene Terry, a federal prisoner, petitions pro se for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, injunctive relief
pursuant to Fed.R. Civ. P. 65(b), and a writ of mandamus
pursuant to 28 U.S.C. § 1361, claiming that he is entitled to
have the Federal Bureau of Prisons ("BOP") determine his
eligibility for transfer to a Community Corrections Center
("CCC").*fn1 He challenges the BOP's current policy,
dictated by the Department of Justice in December 2002, that to
comply with 18 U.S.C. § 3264(c), a federal prisoner may only be
transferred to a CCC for a period of time equal to the last 10
percent of his sentence, not to exceed six months. The prior BOP
policy allowed transfer to a CCC for a period longer than the
last ten percent of a prison term, up to a maximum of six months.
(Bureau of Prisons, Program Statement 7310.04, December 16, 1998
(Ex. D to Declaration of Allison Penn ("Penn Decl.") at 8))
Petitioner asks this court to "compel the lawful exercise of
statutory discretion [by the BOP] in the designation of
petitioner's place of confinement," consistent with the BOP's preexisting policy.
(Pet'r's Mot. for a T.R.O. and/or Prelim. Inj. at 1) For the
reasons set forth below, the petition is granted.
A. The BOP Policy
The BOP changed its policy regarding CCC designations in
response to a December 13, 2002 Memorandum Opinion from the
Department of Justice Office of Legal Counsel ("OLC"), which
declared unlawful the BOP's prior practice of making all federal
prisoners eligible for placement in a CCC for as much as the last
six months of their sentence, regardless of the total length of
the sentence. Numerous decisions in this District and others have
described the OLC's opinion, and only a brief overview is
The OLC opined that the BOP's discretion is limited to placing
prisoners in CCC's to the lesser of the last six months or 10
percent of their prison terms. (Mem. Op. Off. Legal Counsel,
"Bureau of Prisons Practice of Placing in Community Confinement
Certain Offenders Who Have Received Sentences of Imprisonment,"
December 13, 2002 ("OLC Memo"), Ex. A to Declaration of Allison
Penn ("Penn Decl.") at 5) Specifically, the OLC concluded that
the BOP lacked "clear general statutory authority" either to
place an offender in a CCC at the outset of his sentence or to transfer him from "a place of imprisonment" to
a CCC. (Id. at 1, 5) Although the OLC acknowledged that Section
3621(b) gives the BOP the authority to choose a prisoner's place
of imprisonment generally, it concluded that confinement in CCC's
does not constitute "imprisonment." (Id. at 5) Hence, according
to the OLC, the authority granted to the BOP under Section
3621(b) to "designate the place of [a] prisoner's imprisonment"
does not include the authority to place a prisoner in a CCC.
The OLC concluded that the only statute giving the BOP any
authority to transfer inmates to CCC's is Section 3624(c), which
mandates that the BOP "shall assure, to the extent practicable,"
that a federal prisoner spend the lesser of six months or the
last 10 percent of his prison term "under conditions that will
afford the prisoner a reasonable opportunity to adjust to and
prepare for the prisoner's re-entry into the community,"
including "home confinement," 18 U.S.C. § 3624(c). (OLC Memo at 5
and n. 6)
On December 20, 2002, the BOP issued its own memorandum to all
BOP wardens announcing that "effective immediately" and as a
result of the OLC memorandum, "[p]re-release programming CCC
designations are limited in duration to the last 10% of the
prison sentence, not to exceed six months." Zucker v.
Menifee, No. 03-10077, 2004 WL 102779, at *2 (S.D.N.Y. Jan. 21,
2004) (quoting the December 20, 2002 BOP memorandum ("BOP memo")). On
December 30, 2002, respondent issued a memorandum to the inmates
of the Federal Correctional Institution in Otisville, New York,
detailing the BOP's new policy on CCC designations and announcing
that it had gone into effect at Otisville as of December 20,
2002. (Fredrick Menifee, Warden of FCI-Otisville, "Community
Corrections Center (CCC) Halfway House Changes," December 30,
2002 (Ex. C to Penn Decl.))
B. Petitioner's Case
Terry was convicted, on his own guilty plea, of violating
various conditions of supervised release. (Ex. C to Declaration
of Patrick Ward ("Ward Decl.")) On October 29, 2003, he began
serving an aggregate prison sentence of 20 months and 117 days at
the Federal Correctional Institution in Otisville, New York.
(Ward Decl. ¶ 9) His projected release date, which takes into
account credit for Good Conduct Time, is March 24, 2005. (Id.;
Ex. B to Ward Decl.)
Under the BOP's current policy, Terry will not be eligible for
transfer to a CCC until January 21, 2005. (Ex. A to Ward Decl.)
Under the BOP's pre-December 2002 policy, Terry would have been
eligible for placement in a CCC as early as September 21, 2004.
(Pet. for Writ of Habeas Corpus Pursuant to Title
28 U.S.C. § 2241 ("Habeas Pet."))
On April 28, 2004, Terry filed with the BOP a "Request for Administrative Remedy," requesting six months' placement in a
CCC, as opposed to the two months he had been granted by the BOP.
(Ex. H to Habeas Pet.) On May 7, Warden Menifee denied the
request, citing the BOP's new policy and the OLC memo. (Ex. G to
Habeas Pet.) On May 21, 2004, Terry filed the present petition.
This court has subject matter jurisdiction pursuant to
28 U.S.C. §§ 2241 and 1361. See, e.g., Loeffler v. Menifee,
326 F. Supp.2d 454, 456 (S.D.N.Y. 2004). Although the government
does not raise Terry's failure to exhaust his administrative
remedies as a ground for dismissal under Section 2241, I excuse
Terry's failure to appeal his case further to the BOP Regional
Office and General Counsel on the grounds of futility and
irreparable injury. See Guitard v. United States Sec'y of
Navy, 967 F.2d 737, 741 (2d Cir. 1991) (citing Von Hoffburg v.
Alexander, 615 F.2d 633, 638 (5th Cir. 1980)) (failure to
exhaust may be excused when "irreparable injury may occur without
immediate judicial relief" or "administrative appeal would be
`futile'"); Zucker v. Menifee, No. 03-10077, 2004 WL 102779,
at *4 (S.D.N.Y. Jan. 21, 2004) ("[G]iven the subordinate relation
of the highest level of administrative appeal [, the BOP General
Counsel,] to the source of the interpretation at issue in this
case [, the Attorney General], further pursuit of remedies within the BOP would be `futile.'"); Greenfield v. Menifee, No.
03-8205, bench op. at 12 (S.D.N.Y. Oct. 30, 2003) ("[E]xhaustion
would be futile because the final level of appeal would be to the
[BOP] Office of General Counsel, which is the office that issued
the December 20 BOP memo[.]").
Terry, one of a series of federal prisoners who have challenged
the BOP's current policy,*fn2 recapitulates the following arguments: (1) that the OLC memo and BOP policy are based on
erroneous interpretations of Sections 3621(b) and 3624(c); (2)
that the new policy violates the Administrative Procedure Act
("APA"), 5 U.S.C. § 553, because it is an administrative rule
that was not promulgated pursuant to APA "notice and comment"
rulemaking procedures; and (3) that the application of the new
policy to petitioner after he had pleaded guilty violates the Ex
Post Facto Clause of the Constitution. U.S. Const. art. I, § 10,
A. Deference Due to BOP's Statutory Interpretations
It appears to be a consensus among the courts in this District
that the BOP's interpretation of Sections 3621(b) and 3624(c) is
entitled to "some deference" as set forth in United States v.
Mead, 533 U.S. 218, 234 (2001) and Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944). See, e.g., Crowley v. Federal
Bureau of Prisons, 312 F. Supp.2d 453, 459 (S.D.N.Y. 2004);
DiStefano v. Federal Bureau of Prisons, No. 04-0007, 2004 WL
396999, at *4 (S.D.N.Y. Mar. 4, 2004); Cohn v. Federal Bureau
of Prisons, 302 F. Supp.2d 267, 271 (S.D.N.Y. 2004). This
deference is a cut below the "substantial deference" accorded to
agency pronouncements under Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984).
This lesser deference is due because Congress did not delegate to the BOP
authority to issue rules with the binding effect of law
particularly with regard to the scope of the BOP's authority to
place inmates in CCC's at various times during their imprisonment
and because the BOP's policy change was not made pursuant to
notice-and-comment rulemaking procedures. See Mead,
533 U.S. at 226-29; see also Crowley, 312 F. Supp.2d at 459;
Zucker, 2004 WL 102779, at *5.
"Some deference" as developed by the Supreme Court in
Skidmore and Mead entitles the current BOP policy only to
"respect proportional to its power to persuade [and how much it]
may claim the merit of its writer's thoroughness, logic and
expertness, [and] its fit with prior interpretations. . . ."
Mead, 533 U.S. at 235. For the reasons stated below, the
statutory interpretation underlying the BOP policy seems
erroneous, principally because it is contrary to a plain reading
of Sections 3621(b) and 3624(c).
B. Section 3621(b)
Section 3621(b) grants the BOP general authority over the
placement of federal prisoners within the correctional system:
The Bureau of Prisons shall designate the place of
the 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,. . . . The Bureau may at
any time, having regard for the same matters, direct
the transfer of a prisoner from one penal or
correctional facility to another.
18 U.S.C. 3621(b). The OLC memo starts with the Sentencing
Guidelines and works backwards to reach its conclusion that a CCC
is not a "place of imprisonment" under Section 3621(b). To
justify this logic, respondent relies principally on United
States v. Adler, where the Second Circuit held that
confinement in a CCC was not "imprisonment" as used in Section
5C1.1 of the Sentencing Guidelines. 52 F.3d 20, 21 (2d Cir. 1995)
(per curiam). Guidelines Section 5C1.1 sets forth the kinds of
sentences that may be imposed by the courts for offenders within
Zones A, B C, and D of the Guidelines. U.S.S.G. § 5C1.1. As an
initial matter, judicial interpretation of a term as used in the
Sentencing Guidelines does not control interpretation of the same
term in a federal statute. See United States v. LaBonte,
520 U.S. 751, 868 (1997) (Sentencing Commission's commentary
"must give way" when it conflicts with the plain meaning of a
federal statute); Zucker, 2004 WL 102779, at *7.
Regardless, the language of the Guideline is itself equivocal
on whether CCC's are "places of imprisonment." For example, in
discussing the proper sentence for an offender within Zone A,
Application Note 2 to Section 5C1.1 contrasts a term of imprisonment, on the one hand, with a term of probation or a
simple fine on the other. It does not mention CCCs. In discussing
offenders in Zone B, Section 5C1.1(c)(2) states that the minimum
term may be satisfied by "a sentence of imprisonment that
includes a term of supervised release with a condition that
substitutes community confinement . . . provided that at least
one month is satisfied by imprisonment." U.S.S.G. § 5C1.1(c)(2).
The Guideline's first use of the word "imprisonment" does not
distinguish between "imprisonment" and "community confinement,"
but rather seems to include the latter in the former. On the
other hand, the second use of "imprisonment" seems to carry a
different meaning from the first. This secondary meaning of
"imprisonment" might arguably exclude CCC's, but as with the rest
of the Guideline's language, is unclear. The same usage is
repeated in Section 5C1.1(d)(2), which covers offenders in Zone
The plain language of Section 3621(b) is far more informative
on the issue. Nothing on the face of the statute excludes CCC's
from the BOP's discretion over the placement of inmates in the
correctional system. The statute prescribes that the "place of
imprisonment" be "penal or correctional" and that it meet minimum habitability standards. If Congress intended to
exclude a particular type of facility from the BOP's designation
authority, it could have done so easily. Instead, it granted the
BOP broad authority to designate "any" such facility. In 1992,
the OLC itself recognized the plain meaning of Section 3621(b):
There is . . . no basis in section 3621(b) for
distinguishing between residential community
facilities and secure facilities. Because the plain
language of section 3621(b) allows BOP to designate
`any available penal or correctional facility,' we
are unwilling to find a limitation on that
designation authority based on legislative history.
Op. Off. Legal Counsel, Statutory Authority to Contract With the
Private Sector for Secure Facilities, March 25, 1991,
http://www.usdoj.gov/olc/quinlan.15.htm. Likewise, the BOP
asserted in a 1993 policy statement that it had the authority "to
place sentenced prisoners in community corrections centers, since
such centers met 18 U.S.C. § 3621(b)'s definition of a `penal or
correctional facility.'" Bureau of Prisons, Program Statement
7310.02, Oct. 19, 2003 (quoted in Reno v. Koray, 515 U.S. 50,
Moreover, case law, other statutes, and common sense establish
that a CCC is a "place of imprisonment" for purposes of Section
3621(b). As the Supreme Court recognized in Reno v. Koray,
the test for "imprisonment" is whether offenders "remain subject
to the control of the Bureau." 515 U.S. at 63. Offenders
imprisoned in CCC's are subject to BOP control. They are "subject to BOP's disciplinary procedures; they are subject
to summary reassignment to any other penal or correctional
facility within the system, and, being in the legal custody of
BOP, the Bureau has full discretion to control many conditions of
their confinement." Id. Because the BOP exercises complete
control over offenders placed in CCC's, confinement in a CCC
Related statutes also show that confinement in CCC's
constitutes "imprisonment." Title 18, Section 3622(b) allows an
inmate, while imprisoned, to "participate in a training or
educational program in the community" Id.; Section § 3622(c)
permits an inmate to "work at paid employment in the community
while continuing in official detention at the penal or
correctional facility." Id. These statutes acknowledge that
there is "absolutely nothing inconsistent with the concept of
`imprisonment' in permitting an offender outside physical
confinement, into the community, for various reasons during part
or all of the day." Iacaboni v. United States,
251 F. Supp.2d 1015, 1029 (D. Mass. 2003)
Indeed, Congress provided in Section 3624(c) the other
statute at the heart of this matter that "imprisonment"
encompasses conditions of confinement even less restrictive than
those in CCC's. Section 3624(c) authorizes the BOP to "assure
that a prisoner serving a term of imprisonment" is given the opportunity to serve as much as six months of the final portion
"of the term" in home confinement. Id. If Congress directed
that an offender may serve a portion of a "term of imprisonment"
while living at home full time, it meant also for "imprisonment"
to include confinement in CCC's. Simply stated, "[c]ommunity
confinement constitutes one form of `imprisonment,' and a
community confinement facility is a `penal or correction
facility.'" Iacaboni, 251 F. Supp.2d at 1025.*fn4
C. Section 3624(c)
Section 3624(c) provides, in relevant part:
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 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
18 U.S.C. 3624(c). Respondent argues that even if a CCC is held
to be a "place of imprisonment" for purposes of Section 3621(b),
Section 3624(c) restricts the BOP's authority to make any
transfer to a CCC. Therefore, according to respondent, the BOP may transfer an inmate to a CCC only during the last 10 percent
of the inmate's prison term, not to exceed six months.
When read in conjunction with Section 3621(b), the plain
language of Section 3624(c) does not support respondent's
conclusion. Section 3624(c) imposes separately on the BOP a
"qualified obligation" to "assure" that an inmate serves the
final ten percent of his sentence under conditions that would
assist the inmate in his return to the community. Goldings v.
Winn, 383 F.3d 17, 23-24 (1st Cir. 2004); see also Cato v.
Menifee, No. 03-5795, 2003 WL 22725524, at * 6 (S.D.N.Y. Nov.
20, 2003). The lesser of six months or the last 10 percent of a
sentence is the maximum period of time for which the BOP is
obligated to prepare a pre-release plan facilitating re-entry. In
other words, Section 3624(c) restricts the BOP's discretion not
to consider community confinement at the end of an inmate's
sentence. In no way does it restrict the BOP's discretion to
place prisoners in CCC's in appropriate cases sooner than it
would be required to consider such placements at the six month/10
percent mark. "It is illogical and inappropriate to infer that
where the mandate that § 3624(c) places upon the BOP at the end
of a prisoner's sentence stops, a limitation on its discretion
for the period before that begins." Monahan v. Winn, 276 F.
Supp.2d 196, 211 (D. Mass. 2003). To put it another way, Section
3621(b) and Section 3624(c) serve wholly different purposes. The former gives the BOP broad discretion to place prisoners wherever
it deems appropriate; the latter does not so much limit as focus
that discretion, and then only during the lesser of the last 10
percent or six months of a sentence, and only so as to assure
that a pre-release plan is implemented "to the extent
practicable." Hence, the BOP's pre-December 2002 policy of
placing inmates in CCC's for as long as the final six months of
their sentences, regardless of the total length of these
sentences, was lawful under both statutes.
Because the statutory interpretation underlying the BOP's
current policy is erroneous, I need not reach petitioner's APA
and retroactivity arguments. See Zucker, 2004 WL 102779, at
*11. * * *
For the reasons set forth above, the petition is granted and
respondent is ordered to reconsider, promptly and in good faith,
the appropriateness of transferring petitioner to a community
confinement center in light of the factors deemed appropriate by
the BOP, without reference to the BOP policy promulgated in
December 2002. It bears emphasis that this Order's effect is to
restore discretion to the BOP under its pre-December 2002 policy
over designation and transfer of federal. prisoners. The Order
does not purport to establish petitioner's entitlement to
placement in a CCC.