United States District Court, S.D. New York
October 7, 2005.
ADAM LESNICK, Petitioner,
FREDERICK MENIFEE, Warden in his official capacity, Respondent.
The opinion of the court was delivered by: JAMES FRANCIS IV, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Adam Lesnick, an inmate in the custody of the United States
Bureau of Prisons (the "BOP"), petitions for a writ of habeas
corpus, challenging a new BOP regulation that limits his
eligibility for placement in a community corrections center
("CCC") to the last ten percent of his sentence. Mr. Lesnick
seeks an order mandating that the BOP apply 18 U.S.C. § 3621 (b),
and not the new BOP regulation, 28 C.F.R. § 570.21, to determine
whether to transfer him to a CCC. The parties agreed that I would
exercise jurisdiction over this case for all purposes pursuant to
28 U.S.C. § 636(c). For the reasons that follow, the petition is
A. Procedural and Factual History
On August 9, 2004, in the United States District Court for the
District of Oregon, Mr. Lesnick pled guilty to one count of
filing a false income tax return in violation of
26 U.S.C. § 7206(1) and two counts of wire fraud in violation of
18 U.S.C. § 1343. (Declaration of Adam M. Johnson dated August 1, 2005
("Johnson Decl."), Exh. C). He was sentenced to a prison term of
21 months, followed by 36 months of supervised release. (Johnson Decl., Exh.
C.) Mr. Lesnick is currently incarcerated in the Federal
Correctional Institution in Otisville, New York ("FCI
Otisville"), and his projected release date is March 28, 2006.
(Johnson Decl., ¶¶ 1-2 & Exh. A).
In October 2004, FCI Otisville staff conducted an initial
evaluation of Mr. Lesnick's eligibility for placement in a CCC.
(Johnson Decl., Exh. F). In their Program Review Report, the
staff indicated that Mr. Lesnick's sanitation was "satisfactory"
and work performance rating was "pending." (Johnson Decl., Exh.
F). They deferred any recommendation regarding CCC placement for
him. (Johnson Decl., Exh. F). In April 2005, FCI Otisville staff
again evaluated Mr. Lesnick, this time reporting that his work
performance and sanitation were "good" and that he was
participating in a final responsibility program, a release
preparation program, a family values program, and recreational
activities. (Johnson Decl., Exh. G). The staff reported that his
"goals [were] met," and, under "team actions," they indicated
"community custody given today." (Johnson Decl., Exh. G). For a
"CCC recommendation," the staff listed "on or after 2/2/06 (10%)"
(Johnson Decl., Exh. G), the first day of the last ten percent of
Mr. Lesnick's prison term.
In July 2005, Mr. Lesnick was again evaluated by FCI Otisville
staff, and this Program Review Report also indicated that his
performance was "good," he had continued to participate in all of
his prison programs, and, as before, his "goals [were] met." (Johnson Decl., Exh. H). The recommendation regarding Mr.
Lesnick's placement in a CCC was "last review," indicating that
Mr. Lesnick was ready for formal institutional review of his
eligibility for a transfer to a CCC. (Johnson Decl., ¶¶ 8-9 &
The formal review has not been commenced. (Johnson Decl., ¶¶
10-12). Despite Mr. Lesnick's good behavior and regular
participation in prison activities, the BOP will not consider
transferring Mr. Lesnick to a CCC until February 2, 2006,
pursuant to a new BOP rule. (Johnson Decl., Exh. G). That rule,
28 C.F.R. § 570.21, limits an inmate's eligibility for placement
in a CCC to the last ten percent of the sentence, with a six
month maximum. Mr. Lesnick has challenged this regulation on the
basis that it conflicts with 18 U.S.C. § 3621(b), the statute
governing inmates, "place of imprisonment." Mr. Lesnick has
petitioned for a writ of habeas corpus, seeking an order
mandating that the BOP consider transferring him to a CCC in
accordance with the statutory guidelines and without reference to
the new BOP regulation. The question before me is whether the new
BOP regulation complies with the requirements of Section 3621(b).
B. History of BOP's New Policy
The place of imprisonment for all inmates is governed by
18 U.S.C. § 3621(b), which provides as follows:
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,
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the
(A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional
facility as appropriate; and
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to section 994(a)(2)
of title 28.
In designating the place of imprisonment or making
transfers under this subsection, there shall be no
favoritism given to prisoners of high social or
economic status. 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. The Bureau shall make available appropriate
substance abuse treatment for each prisoner the
Bureau determines has a treatable condition of
substance addiction or abuse.
18 U.S.C. § 3621(b).
In December 2002, in response to a legal memorandum issued by
the Office of Legal Counsel for the United States Department of
Justice (the "OLC Memorandum"), the BOP established a policy
limiting CCC designations to the last ten percent of a prison
term, with a maximum of six months. A number of courts subsequently
reviewed the policy and issued opinions describing its history in
some detail. See, e.g., Pinto v. Menifee, No. 04 Civ. 5839,
2004 WL 3019760, at *9-10 (S.D.N.Y. Dec. 29, 2004) (collecting
cases); Zucker v. Menifee, No. 03 Civ. 10077, 2004 WL 102779,
at *8-10 (S.D.N.Y. Jan. 21, 2004) (reviewing legislative
history). The summary provided by the Eighth Circuit Court of
Appeals is particularly helpful:
The [2002 OLC] Memorandum acknowledged that § 3621(b)
gave the BOP the authority to choose an inmate's
place of imprisonment generally. However, the
Memorandum found that "community confinement does not
constitute imprisonment." [OLC] Memorandum at 1,
Therefore, § 3621(b) which gives the BOP the power to
decide a prisoner's "place of imprisonment" in "any
available penal or correctional facility" did not
apply to placement in CCCs. Id. According to the
Memorandum, the authority to transfer a prisoner to a
CCC came solely from § 3624 (c). This section limited
the stay "in conditions that will afford the prisoner
a reasonable opportunity to adjust to and prepare for
the prisoner's re-entry into the community" to "a
reasonable part, not to exceed six months of the last
10 per centum of the term." 18 U.S.C. § 3624 (c);
see Memorandum at 1, 6. The Memorandum concluded
that the BOP had no authority to transfer a prisoner
to a CCC, except for the lesser of the last ten
percent of the prison term and the last six months of
the sentence. . . .
On December 20, 2002, the BOP adopted the opinions of
the Office of Legal Counsel and the Attorney General
and instituted a policy that inmates could be
released to CCCs only for the last ten percent of
their terms, to be capped at six months.
Eldwood v. Jeter, 386 F.3d 842, 844-45 (8th Cir. 2004).
In reviewing the BOP policy (the "December 2002 rule" or
"December 2002 regulation"), the vast majority of district
courts, and the two appellate courts that considered the issue, ruled
that the BOP had misinterpreted the governing statutes. The
courts ruled that Section 3621 (b), which governs the placement
of the prisoner, authorizes the BOP to transfer inmates to
correctional facilities at any time during incarceration; Section
3624 governs the "release of a prisoner," and in no way restricts
the authority granted by Section 3621. See, e.g., Eldwood,
386 F.3d 842, 847; Goldings v. Winn, 383 F.3d 17, 28 (1st Cir.
2004); Schoenfeld v. Menifee, No. 04 Civ. 3551, 2004 WL
1516797, at *3 (S.D.N.Y. July 7, 2004); Cato v. Menifee, No. 03
Civ. 5795, 2003 WL 22725524, at *4-6 (S.D.N.Y. Nov. 20, 2003).
Courts held that a CCC may be designated as the place of
imprisonment for service of an entire sentence; it was improper
for the BOP to assume that a CCC could serve only as a re-entry
facility. Goldings, 383 F.3d at 28; Schoenfeld, 2004 WL
1516797, at *3; Pinto, 2004 WL 3019760, at *9-10; Zucker,
2004 WL 102779, at *7.
As the court explained in Zucker,
There is surely no inconsistency in the two goals of
entrusting the individualized decision of each
prisoner's placement to the agency responsible for
his or her custody, . . . and requiring that that
decision take into account the necessity for some
period or condition of transition prior to reentry.
2004 WL 102779, at *10.
In response to the judicial rulings, the BOP proposed a new
regulation that again limited inmates' community confinement to
the last ten percent of the prison sentence, with a maximum of
six months. 69 Fed. Reg. 51,213, 51,214-15 (Aug. 18, 2004) (proposed
rule). The difference between this regulation and its predecessor
is simply the BOP's new rationale for the rule. Whereas the BOP
had previously argued that Section 3624(b) prevented it from
designating a CCC placement prior to the last ten percent of a
prison term, the BOP's new position is that it does have the
discretion to place an inmate in a CCC for all or any portion of
the prison sentence, but has chosen to "exercise its discretion
categorically" and to decline to authorize CCC placement for any
prisoner prior to the last ten percent of his sentence.
69 Fed. Reg. at 51,214.
The new BOP regulations, which became effective on February 14,
2005, provide as follows:
§ 570.20 What is the purpose of this subpart?
(a) This subpart provides the Bureau of Prisons'
(Bureau) categorical exercise of discretion for
designating inmates to community confinement. The
Bureau designates inmates to community confinement
only as part of pre-release custody and programming
which will afford the prisoner a reasonable
opportunity to adjust to and prepare for re-entry
into the community.
(b) As discussed in this subpart, the term "community
confinement" includes Community Corrections Centers
(CCC) (also known as "halfway houses") and home
§ 570.21 When will the Bureau designate inmates to
(a) The Bureau will designate inmates to community
confinement only as part of pre-release custody and
programming, during the last ten percent of the
prison sentence being served, not to exceed six months.
(b) We may exceed these time-frames only when
specific Bureau programs allow greater periods of
community confinement, as provided by separate
statutory authority (for example, residential
substance abuse treatment program (citation omitted),
or shock incarceration program (citation omitted)).
28 C.F.R. §§ 570.20, 570.21.
In reviewing the BOP's interpretation of a statute it
administers, a court must apply the two-part analysis of Chevron
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
"First, as always, is the question whether Congress has directly
spoken on the precise question at issue." Chevron,
467 U.S. at 842. To determine Congressional intent, the court need not rely
solely on the plain language of the statute. "If a court,
employing traditional tools of statutory construction, ascertains
that Congress had an intention on the precise question at issue,
that intention is the law and must be given effect." Id. at 843
If Congress did not express an intent concerning the precise
issue before the court, the court must proceed to step two of the
Chevron analysis. Chevron, 467 U.S. at 843. The question at
that stage is whether the agency's view is "based on a
permissible construction of the statute." Id.
In this case, Congress did express an intent regarding the
process by which the BOP should designate inmates to CCCs. See Goldings, 383 F.3d at 28; Eldwood, 386 F.3d at 845. As
explained below, this intent is clearly expressed in both the
plain language of Section 3621(b) and the Senate Report
accompanying it. Because Congressional intent can be discerned,
deference to the BOP's interpretation of the statute is not
appropriate. See General Dynamics Land Systems, Inc. v.
Cline, 540 U.S. 581, 600 (2004) ("Even for an agency able to
claim all the authority possible under Chevron, deference to
its statutory interpretation is called for only when the devices
of judicial construction have been tried and found to yield no
clear sense of congressional intent [citation omitted]").
A. Section 3621(b)
1. Plain Language
The plain language of Section 3621(b) dictates that the BOP is
charged with designating "the place of the prisoner's
imprisonment" according to the following guidelines:
The BOP may designate any available penal or
correctional facility that meets minimum standards of
health and habitability, . . . that the [BOP]
determines to be appropriate and suitable,
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the
sentence [concerning the purposes of the imprisonment
or recommending a type of penal or correctional
(5) any pertinent policy statement issued by the
Sentencing Commission. . . . 18 U.S.C. § 3621(b) (emphasis added). The use of
"and" instead of "or" underscores Congress's intent
for the BOP to weigh all five listed factors and not
to pick and choose among them. While the BOP
maintains discretion regarding the weight it accords
each factor when evaluating an inmate for placement
in a facility, and the BOP is not barred from taking
into account additional considerations, Congress
clearly intended for the BOP to follow the prescribed
guidelines when making its assessment.
The respondent asserts that the words "may designate," imply
that consideration of the factors set forth in Section 3621(b) is
voluntary. (Respondent's Memorandum of Law in Opposition to
Petition for Writ of Habeas Corpus ("Resp. Memo.") at 13-14).
While I recognize that this argument has previously been accepted
by two courts in this district, Wiesel v. Menifee, No. 04 Civ.
9681, 2005 WL 1036297, at *6 (S.D.N.Y. May 2, 2005) (citing
Lopez v. Davis, 531 U.S. 230
, 241 (2001) (analyzing Section
3621(e)(2), not Section 3621(b)); Lopez v. Apker, No. 05 Civ.
4522, 2005 U.S. Dist. LEXIS 19791, at *12 (S.D.N.Y., Sept. 8,
2005) (citing Wiesel), I find it unpersuasive. It is a
"fundamental principle of statutory construction (and, indeed, of
language itself) that the meaning of a word cannot be determined
in isolation, but must be drawn from the context in which it is
used." Deal v. United States, 508 U.S. 129, 132 (1993); see
also Davis v. Michigan Department of Treasury, 489 U.S. 803
809 (1989) ("It is a fundamental canon of statutory construction
that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme."). The use of "may" cannot
mean that application of the remaining portion of the statute is
entirely dependent upon the will of the BOP. For example, the use
of "may" instead of "shall" does not imply that assigning inmates
to facilities that meet "minimum standards of health and
habitability" is discretionary.
The respondent "would have us put more weight on [this one
word] than [it] can reasonably carry." American Hospital
Association v. N.L.R.B., 499 U.S. 606, 610 (1991). Congress
intended to grant constrained discretion, and while perhaps this
could have been expressed more clearly, that would not have been
accomplished by substituting "shall" for "may." Common sense
dictates that Section 3621(b) means the BOP must designate a
place of imprisonment for each prisoner, and the BOP "may"
designate any facility it chooses, so long as the facility meets
minimum standards and the designation is made in consideration of
the five factors listed by Congress.
2. Legislative History
The legislative history of Section 3621(b) emphasizes that the
BOP is mandated to apply the listed factors. See Pimental v.
Gonzales, 367 F. Supp. 2d 365, 375 (E.D.N.Y. 2005); Drew v.
Menifee, No. 04 Civ. 9944, 2005 WL 525449, at *4 (S.D.N.Y. March
4, 2005); but see Lopez, 2005 U.S. Dist. LEXIS 19791, at *12;
Troy v. Apker, No. 05 Civ. 1306, 2005 WL 1661101, at *2
(S.D.N.Y. June 20, 2001) (factors bear on the substantive
decision whether to transfer but not necessarily the timing);
Wiesel, 2005 WL 1036297 at *5-6; Levine v. Menifee, No. 05
Civ. 1902, 2005 WL 1384021, at *6 (S.D.N.Y. June 9, 2005). Section 3621(b) was originally adopted
as part of the Sentencing Reform Act of 1984, Pub.L. No. 98-473,
Title II, Ch. 2, Oct. 12, 1984, 98 Stat. 1987, which was
accompanied by a thorough report of the Senate Committee on the
Judiciary (the "Senate Report"). S. Rep. No. 98-225, reprinted
in 1984 U.S.C.C.A.N. 3182 (1983). "The most enlightening source
of legislative history is generally a committee report,
particularly a conference committee report, which [the Second
Circuit Court of Appeals has] identified as among `the most
authoritative and reliable materials of legislative history.'"
United States v. Gayle, 342 F.3d 89, 94 (2d Cir. 2003) (quoting
Disabled in Action of Metropolitan New York v. Hammons,
202 F.3d 110, 124 (2d Cir. 2000)).
Throughout the Senate Report accompanying the Sentencing Reform
Act, Congress emphasized that thoughtful and individualized
determinations, as opposed to blanket rules, were to be used in
sentencing. See S. Rep. No. 98-225, reprinted in 1984
U.S.C.C.A.N. 3182 (1983). In particular, the Senate Report
directly addressed the role of the factors in Section 3621(b):
[Section 3621(b)] follows existing law in providing
that the authority to designate the place of
confinement for federal prisoners rests in the [BOP]
. . . Existing law provides that the [BOP] may
designate a place of confinement that is available,
appropriate, and suitable. Section 3621(b) continues
that discretionary authority with a new requirement
that the facility meet minimum standards of health
and safety established by the [BOP]. In determining
the availability or suitability of the facility
selected, the [BOP] is specifically required to
consider such factors as the resources of the
facility considered, the nature and circumstances of
the offense, the history and characteristics of the prisoner, the
statements made by the sentencing court concerning
the purposes for imprisonment in a particular case,
any recommendations as to type of facility made by
the court, and any pertinent policy statements
issued by the Sentencing Commission pursuant to
proposed 28 U.S.C. 994(A) (2). After considering
these factors, the [BOP] may designate the place of
imprisonment in an appropriate type of facility, or
may transfer the offender to another appropriate
facility. . . . The Committee, by listing factors for
[the BOP] to consider in determining the
appropriateness or suitability of any available
facility, does not intend to restrict or limit the
[BOP] in the exercise of its existing discretion so
long as the facility meets the minimum standards of
health and habitability of the [BOP], but intends
simply to set forth the appropriate factors the [BOP]
should consider in making the designations.
S. Rep. No. 98-225, 1984 U.S.C.C.A.N. at 3324-25 (1983) (emphasis
added). The Senate Report expressly stated that the BOP was
"specifically required" to consider the listed factors "in
determining the availability or suitability of the facility
selected" for each offender. Id.
B. The New BOP Regulation
Under the new regulation, the BOP "will designate inmates to
community confinement only as part of pre-release custody and
programming, during the last ten percent of the prison sentence
being served, not to exceed 6 months."
28 C.F.R. § 570.21(a).*fn1 This new policy establishes a bright-line rule that mentions none
of the factors that Congress "specifically required" the BOP to
consider. See 28 C.F.R. § 570.21; S. Rep. No. 98-225, 1984
U.S.C.C.A.N. at 3324-25. The rule makes individualized
determinations unavailable; the BOP will not entertain any
requests for placement in a CCC prior to the last ten percent of
a prisoner's term, unless the individual falls under a narrow
exception for participation in certain treatment programs. No
consideration is given to the nature and circumstances of the
offense or the history and characteristics of the prisoner, and
the regulation completely disregards any judicial recommendation
or statement regarding the purposes of an inmate's imprisonment.
Some courts have upheld the BOP regulation on the basis that
the BOP claimed it considered the factors of Section 3621(b) in
the process of drafting the new rule.*fn2 See Charboneau
v. Menifee, No. 05 Civ. 1900, 2005 WL 2385862, at *6 (S.D.N.Y.
Sept. 28, 2005) (BOP states it considered all factors, and in
particular it considered factors one and five); Lopez,
2005 U.S. Dist. LEXIS 19791, at *12 (BOP states it considered at least
two of the factors and will continue to consider the others);
Moss v. Apker, 376 F. Supp. 2d 416, 423 (S.D.N.Y. 2005) (BOP
claims it considered all five factors when making the rule, but weighed two more heavily
than the others, and it permissibly took into account
considerations of avoiding favoritism and reducing appearance of
leniency; "[t]he Court sees no reason to doubt the veracity of
these statements"); Troy, 2005 WL 1661101, at *2 (BOP
reasonably decided that two factors and issue of favoritism
outweighed any other factors); DeFrancesco III v. Federal Bureau
of Prisons, No. 05 Civ. 1780, 2005 WL 1712020, at *8-9 (D.N.J.
July 20, 2005) (factors were considered by BOP when developing
policy; statute does not mandate weight to be given each of five
The respondent acknowledges that "[i]n formulating a
categorical rule, the BOP could not [and did not] consider the
three Section 3621(b) factors that are specific to an individual
inmate." (Resp. Memo. at 14). Of the five mandatory factors, the
respondent admits that the BOP neglected those factors that deal
with the nature of the offense, the characteristics of the
prisoner, and the sentencing court's recommendation. (Resp. Memo.
The respondent alleges that the BOP did consider factors
numbered one and five, "`the resources of the facility
contemplated'" and "policies of the United States Sentencing
Commission." (Resp. Memo. at 14). With regard to the resources of
the facility contemplated, the BOP's consideration consisted of
noting that "resources of CCCs make them particularly well suited
as placement options for the final portion of offenders' prison
terms." See 69 Fed. Reg. at 15,214. However, as discussed
above, courts have held that the BOP's emphasis on CCCs as re-entry
facilities, rather than as places of imprisonment potentially for
entire sentences, is based on a misinterpretation of the
relationship between Section 3621(b) and Section 3624(c). The
BOP's current understanding of the governing statute is
apparently based on the same misreading that previously led it to
promulgate its unlawful December 2002 policy, and this misreading
cannot properly serve as a basis for the BOP's new rule.
With regard to the other Section 3621(b) factor that the
respondent claims the BOP considered, "any pertinent policy
statement issued by the Sentencing Commission pursuant to section
994(a)(2) of title 28," § 3621(b)(5), the BOP focused exclusively
on Sentencing Guideline 5C1.1, despite recognizing that the
Sentencing Guidelines (the "Guidelines") "are promulgated under
28 § U.S.C. 994(a)(1) [and] are distinct from policy statements."
See 69 Fed. Reg. at 15,214. The BOP reasoned "where a sentence
of imprisonment is required for defendants whose guidelines range
falls within Zones B or C of the Sentencing Table, the Guideline
authorizes `community confinement' only as a condition of
supervised release. . . . That Guideline thus reflects the
Commission's policy determination generally to restrict the
availability of community confinement in lieu of
imprisonment. . . ." 69 Fed. Reg. at 51,214. This application of
a particular provision of the Sentencing Guidelines is improper.
The Guidelines were designed specifically "for use of a sentencing
court in determining the sentence to be imposed in a criminal case." 28 U.S.C. § 994 (a) (2).*fn3 The BOP again applies an
analysis that was already held to be incorrect when the BOP's December
2002 regulation was reviewed. See, e.g., Pinto, 2004 WL
3019760, at *6-9 (summarizing cases holding that the Guidelines
"provide no authority for the BOP's interpretation of section
3621(b)"). The BOP's alleged consideration of factor five of
Section 3621(b) does not actually relate to the factor as defined
in the express language of the statute.
Even if the procedure by which the BOP had adopted its rule
were adequate, the result is a categorical determination that is
inconsistent with the governing legislation. While the BOP
maintains discretion over the designation of facilities, it does
not have the authority to re-write the guidelines provided by Congress.
C. Discretion in Rulemaking
The respondent argues that the BOP has the discretion to engage
in rulemaking that would categorically limit CCC placements to
the last ten percent of any prisoner's sentence. (Resp. Memo. at
9-15). The respondent relies on the Supreme Court cases of Lopez
v. Davis, 531 U.S. 230 (2001), and American Hospital
Association v. N.L.R.B., 499 U.S. 606 (1991). Lopez concerned
the interpretation of 18 U.S.C. § 3621(e)(2), which provides
that, with regard to "[i]ncentive[s] for prisoners' successful
completion of treatment program[s,] . . . [t]he period a prisoner
convicted of a nonviolent offense remains in custody after
successfully completing a treatment program may be reduced by the
[BOP], but . . . not [by] more than one year." See §
Mr. Lopez challenged a BOP regulation that established
categories of inmates not eligible for early release, including,
inter alia, prisoners whose current offense was a felony
attended by the possession of a firearm. Lopez, 531 U.S. at 239
(citing 28 C.F.R. § 550.58(a)). The Supreme Court ruled that the
BOP may categorically exclude certain prisoners from early
release based on pre-conviction conduct, and, further, that the
challenged regulation was permissible because the BOP reasonably
concluded that involvement with a firearm suggests a
dangerousness that appropriately determines the early release
decision. Id. at 244.
Lopez is distinct from the instant case. See Pimental v.
Gonzalez, 367 F. Supp. 2d at 374; but see Bialostok v.
Apker, No. 05 Civ. 2698, 2005 WL 1946480, at *5 (S.D.N.Y. Aug. 12, 2005);
Moss, 376 F. Supp. 2d at 423. Lopez addressed a regulation
that filled a statutory gap left by Congress; the regulation in
this case, on the other hand, contravenes existing statutory
guidelines. Where Congress has "explicitly left a statutory gap
for the agency to fill, there is an express delegation of
authority to the agency to elucidate" the statute by regulation,
and such regulations should be given "controlling weight unless
they are arbitrary, capricious, or manifestly contrary to the
statute." See Chevron, 467 U.S. at 843-44. Even where "the
legislative delegation to an agency on a particular question is
implicit rather than explicit," "considerable weight" should be
accorded to the agency's interpretation of the governing law.
Id. at 844. The Supreme Court explained that with regard to the
statute addressed in Lopez, Section 3621(e), "Congress simply
did not address how the [BOP] should exercise its discretion. . . .
Beyond instructing that the Bureau has discretion to reduce the
period of imprisonment for a nonviolent offender who successfully
completes drug treatment, Congress has not identified any further
circumstance in which the Bureau either must grant the reduction,
or is forbidden to do so." 531 U.S. at 239, 242 (internal
quotation marks omitted). In Section 3621(b), however, Congress
has clearly laid out five factors to guide the BOP in determining
which inmates are best suited for placement in CCCs. See
18 U.S.C. § 3621(b).
Lopez cites American Hospital Association, 499 U.S. at 612,
for the rule that "even if a statutory scheme requires individualized determinations, the decisionmaker has the
authority to rely on rulemaking to resolve certain issues of
general applicability unless Congress clearly expresses an intent
to withhold that authority." 531 U.S. at 244-45; see also Yip
v. Federal Bureau of Prisons, 363 F. Supp. 2d 548, 552 (E.D.N.Y.
2005) ("[T]he BOP is authorized to create categorical rules even
where a statute requires individualized determinations) (quoting
Lopez v. Davis, 531 U.S. at 243-44). In American Hospital
Association, 499 U.S. at 618, the Court found rulemaking
concerning the establishment of bargaining units permissible
where the NLRB made a reasonable determination that acute care
hospitals did not "differ in substantial, significant ways
relating to the appropriateness of bargaining units," and an
exception existed for extraordinary circumstances. Similarly, in
Heckler v. Campbell, 461 U.S. 458, 468 (1983), also cited in
Lopez, the Court held that the Secretary of Health and Human
Services could rely on medical-vocational guidelines, instead of
expert testimony, to determine whether jobs existed for Social
Security Income claimants; this decision was based on the fact
that individualized hearings were still used to assess individual
abilities, and determinations of whether jobs existed depended on
the national economy, not on factors unique to the individual
claimants. In both American Hospital and Heckler, the Court
found that the creation of categories was permissible because the
similarities between those persons or facts being grouped
together were more significant than the differences between them. With the new BOP rule, the opposite is true. Mr. Lesnick may
have little to nothing of consequence in common with the other
prisoners in his "category." As Section 3621(b) shows, prisoners
may be distinguished by offenses, histories, personal
characteristics or a variety of other factors. To be sure, the
BOP could have constructed categorical regulations that reflected
the requirements of the governing statute. See Lopez v.
Davis, 531 U.S. at 249 ("To suggest that decisionmaking must be
individualized is not to imply that it must also be
standardless."). For example, if the BOP had found that all
prisoners convicted of a particular offense, or with a specific
number of convictions, posed a danger that outweighed all other
factors, that might be a reasonable basis on which to limit
placement in CCCs for such individuals. See Drew, 2005 WL
525449, at *5. Similarly, the BOP might reasonably create a
system whereby any statement by a court imposing a sentence could
be categorized. Although possibilities for such rulemaking may
exist, in promulgating 28 C.F.R. §§ 570.20 and 570.21, the BOP
did not exercise its discretion as required by governing
statutory authority. The BOP rule directly contradicts Section
3621(b) and is therefore invalid.
For the foregoing reasons, the petition is granted and the
respondent is ordered to determine, in good faith, the
appropriateness of transferring the petitioner to a community
confinement center considering the five factors set forth in
18 U.S.C. § 3621(b) in combination with any other reasonably appropriate factors, but without reference to 28 C.F.R. § 570.20
or § 570.21. The respondent shall make this determination
promptly and in no event later than twenty (20) days from the
date of this Order.
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