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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


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 provided here.

  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. (Id.)

  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, cl. 1.

  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 C.*fn3

  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, 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, 62 (1995)).

  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 constitutes "imprisonment."

  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 confinement.
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.


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