The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.
REPORT AND RECOMMENDATION TO THE HONORABLE JED S. RAKOFF
In this habeas corpus proceeding pursuant to 28 U.S.C. § 2241, petitioner John Otero ("Otero") seeks an order directing the respondent to make an immediate determination of his eligibility for placement in a Community Correctional Center ("CCC") in accordance with the pre-December 2002 practices ("Old Policy") of the Bureau of Prisons ("BOP"). For the reasons that follow, the petition should be granted.
In December 2002, the Department of Justice Office of Legal Counsel ("OLC") concluded that the Bureau of Prisons had been incorrectly applying 18 U.S.C. § 3624(c). (See Decl. of Peter M. Skinner, Esq., dated Jan. 31, 2005, Ex. A) (Op. of OLC dated Dec. 13, 2002). That statute, enacted in 1984, authorizes the BOP to place federal inmates in a non-prison setting for a reasonable period of time, "not to exceed six months, of the last 10 per centum" of their sentences. 18 U.S.C. § 3624(c). Shortly after the OLC issued its opinion, the BOP amended its policies to conform to the OLC interpretation of the statute. (Id. Ex. C) (Mem. dated Dec. 30, 2002, from Warden Menifee to Otisville inmates). The policy change ("Interim Policy") adversely affected inmates serving sentences of less than five years, who routinely had been sent to a CCC for as long as six months under the Old Policy, but could now be transferred there for a maximum of ten percent of their prison terms.*fn1
The policy change sparked extensive litigation. Of the numerous judges in this District who have considered an inmate's rights to a CCC assignment at the "back end" of a sentence, several have concluded that the Interim Policy is enforceable, but most have granted the petitions and directed that the BOP expeditiously consider the petitioners' eligibility for assignment to a CCC pursuant to the Old Policy, finding either that the Interim Policy is contrary to the controlling statutes, or that it violates the Administrative Procedure Act ("APA") or the Ex Post Facto Clause of the United States Constitution.*fn2
In response, the BOP has adopted new regulations, effective February 14, 2005 ("New Policy"), which again limit an inmate's eligibility for confinement in a CCC to the last ten percent of the prison sentence, not to exceed six months. (See Resp't's Mem. at 5). The new regulations provide as follows:
§ 570.20 What is the purpose of this subpart?
(a) This subpart provides the Bureau of Prisons' . . . 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 confinement. § 570.21 When will the Bureau designate inmates to community confinement?
(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, . . ., or shock incarceration program. 28 C.F.R. §§ 570.20, 570.21.
Thus, the BOP's current position is "that it does have the discretion [under 18 U.S.C. § 3621(b) ("Section 3621(b)")] 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." Lesnick v. Menifee, No. 05 Civ. 4719 (JCF), 2005 WL 2542908, at *3 (S.D.N.Y. Oct. 11, 2005) (quoting 69 Fed. Reg. at 51,214). The Second Circuit has yet to address the New Policy. In a recent decision however, the Third Circuit has held that the New Policy is invalid because it does not take into consideration the mandatory factors enumerated in Section 3621(b). See Woodall v. Fed. Bureau of ...