The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Petitioner Dale Bernard, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and also makes a challenge under the Administrative Procedure Act ("APA") (codified in scattered sections of 5 U.S.C.). Bernard is currently an inmate at the Federal Prison Camp in Duluth, Minnesota. The parties have consented to the disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
On April 13, 2009, Bernard, an inmate in federal custody, filed a complaint challenging certain actions of the Bureau of Prisons ("BOP"), see Complaint, filed Apr. 13, 2009 (Docket # 2) ("Complaint"), which this Court construed both as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and as a complaint seeking review of agency action pursuant to the APA. See Order, filed May 1, 2009 (Docket # 6). After the Government opposed the petition, see Respondent-Defendants' Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus and in Support of Motion to Dismiss Complaint, filed July 16, 2009 (Docket # 14) at 4-9, the Court ruled that a number of Bernard's claims were meritless or moot. Bernard v. Roal, 2010 WL 93160, at *3 (S.D.N.Y. Jan. 11, 2010). But the Court also concluded that Bernard's complaint should be construed as raising several claims that were not addressed by the Government. See id. Accordingly, the Court directed the Government to file new papers addressing these claims. See id. The Court also gave Bernard permission to clarify his claims to the extent that he believed that the Court's interpretation of his claims was not accurate. See id.
Both the Government and Bernard have since filed additional papers. See Respondent-Defendants' Supplemental Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus and in Support of Motion to Dismiss the Complaint, filed Mar. 4, 2010 (Docket # 33); Declaration of Alicia M. Simmons, filed Mar. 4, 2010 (Docket # 32) ("Simmons Decl."); Plaintiff's Supplemental Memorandum of Law in Support of Writ of Habeas Corpus and in Opposition to Motion to Dismiss the Complaint, filed May 13, 2010 (Docket # 35) ("Pet. Suppl. Mem.").
B. Bernard's Remaining Claims
Bernard's suit challenges the timing of his consideration for placement in a Residential Drug Abuse Program ("RDAP"), including how that consideration impacts on his eligibility for placement in a Residential Re-Entry Center ("RRC") and on his eligibility for early release. See Complaint ¶¶ 23-34. In its previous decision, the Court summarized Bernard's claim regarding timing as follows:
(1) an inmate must complete the RDAP prior to being placed in a Residential Re-Entry Center ("RRC"), which is a form of community corrections placement;
(2) the RDAP program by itself lasts nine months; (3) Congress has mandated that an inmate may spend up to 12 months in an RRC [see 18 U.S.C. § 3624(c)(1)]; and (4) inmates are eligible for up to a 12-month reduction in their overall sentence upon completion of [a drug treatment program].*fn1 Accordingly,
Bernard argues, an inmate would have to be considered for placement in the RDAP 33 months prior to his sentence completion date for there to be any hope for the full range of placements and the sentence reduction contemplated by Congress. Because Bernard's projected release date is August 10, 2012, the 33-month date passed in November 2009 without Bernard having been considered for placement in the [RDAP].*fn2 Bernard asserts that the BOP "leaves no opportunity for consideration for the full amount of the incentives that the BOP, itself, has determined the plaintiff is eligible for."
Separately, Bernard notes that, under BOP policy, consideration for RRC placement does not take place until between 17-19 months prior to the inmate's projected release date. Bernard alleges that this too violates the governing statutes because the BOP allows only 19 months at most for both the RRC placement and a sentence reduction -- instead of the 24 months contemplated by statute. Finally, Bernard's later papers challenge a BOP policy that permits placement in an RRC for periods of more than 6 months only in "unusual and extraordinary circumstances."
Bernard, 2010 WL 93160, at *1-2 (citations omitted). Accordingly, the Court construed Bernard's complaint as challenging the following three matters:
(1) the BOP policy to consider inmates (including Bernard) for RRC placement no longer than 19 months prior to the inmate's projected release date; (2) the BOP's failure to consider inmates (including Bernard) for placement in the RDAP program 33 months before his projected release date; and (3) the alleged BOP policy ...