Opinion
No. 04 Civ. 9944 (HBP).
May 17, 2005
MEMORANDUM OPINION AND ORDER
Respondent moves for reconsideration of that portion of my February 25, 2005 Memorandum Opinion and Order ("2-25-05 Order") that held that the February, 2005 amendment to 28 C.F.R. 570.21 violates Sections 3621(b) and 3624(c) of Title 18, United States Code. Petitioner also seeks an Order directing the United States Bureau of Prisons ("BOP") to transfer petitioner to a community confinement center ("CCC") immediately and permitting him to conduct discovery of the BOP's CCC placement decisions in other cases. Both parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, both motions are denied.
A. Respondent's Motion for Reconsideration
Familiarity with my 2-25-05 Order is assumed. In short, this action arises out of a change in the manner in which the BOP calculates an inmate's eligibility for placement in a CCC, sometimes referred to as a halfway house. Because the amount of freedom enjoyed by an inmate in a halfway house is considerably greater than that enjoyed by an inmate in a federal correctional institution, petitioner, like most inmates, seeks to be placed in a CCC as soon as possible.
As set forth in greater detail in my 2-25-05 Order, prior to December 2002, the BOP interpreted the 18 U.S.C. §§ 3621(b) and 3624(c) as permitting an inmate's placement in a CCC as much as six months before his or her release date. In December 2002, the BOP reinterpreted these statutes and concluded that an inmate could not be placed in a CCC prior to either the last six months of his or her sentence or the last ten percent of his or her sentence, which ever period was shorter. Thus, for inmates such as petitioner, whose sentence was less than sixty months, this reinterpretation decreased the time they could spend in a CCC and increased the time they would spend in a more restrictive correctional institution.
After receiving briefing from the parties concerning the December 2002 reinterpretation, I scheduled oral argument in this matter for February 10, 2005. The day before oral argument, I received a letter from counsel for respondent, contending that the petition would become moot as of February 14, 2005 because that was the effective date of a second BOP reinterpretation of Sections 3621(b) and 3624(c). Specifically, respondent's counsel stated:
I have recently learned that the new rule is now finalized, and will take effect on Monday, February 14, 2005. . . . The new rule will replace BOP's December 2002 policy and, from what I understand, will govern all CCC placement determinations from February 14, 2005 forward.
Accordingly, as of Monday, the policy petitioner challenges will no longer be in effect. Because petitioner is only a little over five months into his fifteen-month sentence, BOP has yet to determine his CCC transfer date under the December 2002 policy and that determination will not be made by February 14, 2005. Petitioner therefore will never be considered for a CCC transfer pursuant to the policy he currently challenges. For these reasons, respondent believes that, within a matter of days, the instant petition will be moot.
(Letter to the Court from Assistant United States Attorney John P. Cronan, dated February 9, 2005, at 1-2).
The following day, at oral argument, respondent withdrew its mootness argument, explaining that petitioner's review for CCC placement was literally taking place at that time, and it was not clear whether, in the absence of judicial intervention, petitioner would be considered under the December 2002 policy or the February 2005 policy. Specifically, counsel for respondent stated:
It's not entirely clear the final determination as to this inmate's CCC placement, whether it will be officially because of the December 2002 policy or the February 2005 policy.
* * *
We haven't briefed the, the new rule that came in to effect, that's coming into effect on Monday. One of the issues is, like I said earlier, it's not entirely clear whether this inmate is, from a pure technical standpoint, being considered under the December 2002 Policy or Monday's new rule. The outcome for him certainly is the same. His transfer would occur on the ten percent date, but it's not entirely clear which of the two policies he's being considered under.
(Recording of argument heard on February 10, 2005, at time counter 3:50 and 43:39). At another point in the argument, counsel for respondent stated: "We would do what you ordered. If you ordered us to re-evaluate [petitioner] under pre-December 2002 practices, that's what we would do. We would not apply the February 2005 rule" (Recording of argument heard on February 10, 2005, at time counter 54:45).
At the conclusion of the February 10, 2005 oral argument, I directed counsel to submit supplemental letter briefs concerning the legality of the BOP's February 2005 reinterpretation. Respondent did not clarify in its submission whether the February 2005 reinterpretation would not be applied to petitioner.
Because respondent never clarified his position concerning the applicability of the February 2005 reinterpretation to petitioner, my 2-25-05 Order addressed the legality of both reinterpretations. My principal reasons for addressing both reinterpretations were (1) the lack of clarity concerning which reinterpretation would be applied to petitioner, and (2) the incompleteness that would result from considering only the December 2002 reinterpretation in the face of respondent's argument that the February 2005 reinterpretation remedied the defects that some courts had found in the December 2002 reinterpretation.
Although petitioner's consideration for placement in a halfway commenced prior to the February 10, 2005 oral argument, it was not completed until after the issuance of my 2-25-05 Order. On March 3, 2005, pre-December 2002 criteria were applied to petitioner and, subject to certain conditions not here relevant, he was approved for placement in a CCC on June 30, 2005 (Declaration of Frederick Menifee, dated March 31, 2005 and annexed to the letter of Assistant United States Attorney John P. Cronan, dated April 1, 2005 ("Menifee Decl.")).
Respondent now contends that that portion of my 2-25-05 Order finding the February 2005 reinterpretation to be illegal should be vacated because petitioner did not face any injury from the potential application of the February 2005 reinterpretation and, therefore, lacked standing to challenge it.
As the facts recounted above demonstrate, at the time of the oral argument in this matter and as of my 2-25-05 Order, it was far from clear whether the February 2005 reinterpretation would be applied to petitioner in the absence of judicial intervention. On February 9, respondent advised me that the February 2005 reinterpretation would be applied to petitioner and mooted his challenge to the December 2002 reinterpretation. On the following day, respondent abandoned this argument, but was unable to say whether the February 2005 policy would be applied to petitioner. Respondent's supplemental letter brief concerning the legality of the February 2005 reinterpretation never even suggested that the February 2005 reinterpretation would not be applied to petitioner. Given these facts, there was threatened injury to petitioner from the February 2005 reinterpretation sufficient to confer standing. See Lamar Adver. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365, 373 (2d Cir. 2004) ("To meet Article III's constitutional requirements for standing, a plaintiff must allege an actual or threatened injury to himself that is fairly traceable to the allegedly unlawful conduct of the defendant." (citations and inner quotation marks omitted; emphasis added)).
Admittedly, respondent did unequivocally state at the oral argument that, if ordered to do so, he would determine petitioner's eligibility for placement in a CCC under the pre-December 2002 criteria. That offer did not, however, eliminate the need to consider the February 2005 reinterpretation. The February 2005 reinterpretation was the BOP's effort to address and correct the deficiencies that several courts had found in the December 2002 reinterpretation. See Supplementary Information Published in Connection with Proposed Amendment to 28 C.F.R. Part 570, 69 Fed. Reg. 51213, 51213 (Aug. 18, 2004) ("Because various courts have held that the Bureau has discretion under 18 U.S.C. 3621(b) to place offenders sentenced to a term of imprisonment in CCCs, the Bureau considers it prudent to determine how to exercise such discretion."). Given the uncertainty of the applicability of the February 2005 reinterpretation to petitioner, to have ordered the BOP to apply pre-December 2002 criteria to petitioner while simply ignoring he sufficiency of its remedial regulatory action would have resulted in an incomplete adjudication of the issues and an unexplained rejection of the BOP's remedial effort.
Thus, I conclude that petitioner did have standing to challenge the BOP's February 2005 reinterpretation of the standards for CCC placement and that my consideration of the February 2005 reinterpretation was proper. Respondent's motion for reconsideration is, therefore, denied.
B. Petitioner's Motion for Immediate Placement in CCC and Discovery
My 2-25-05 Order directed respondent "in good faith, to consider the appropriateness of transferring petitioner to a community confinement center in light of the factors set forth in Section 3621(b) and any additional factors deemed appropriate by the BOP, without reference to the BOP policy promulgated in December 2002 and without reference to the BOP's February 14 amendment to 28 C.F.R. § 570.21." Although the BOP has completed a review of petitioner's eligibility for placement in a CCC without regard to its December 2002 or February 2005 reinterpretations and has determined that petitioner is eligible for placement as of June 30, 2005 — approximately 23 days sooner than his previous eligibility date — petitioner contends that the review was not undertaken in good faith, that petitioner should have received an earlier eligibility date and that petitioner should be transferred immediately to a halfway house.
Respondent has submitted a declaration attesting to the facts considered in determining petitioner's eligibility date, and that declaration establishes that the criteria set forth in 18 U.S.C. § 3621(b) were considered in determining the date on which petitioner would be eligible for placement in a CCC (Menifee Decl. ¶ 14). Although petitioner cites non-trivial anecdotal evidence that determinations made prior to December 2002 generally granted greater period of CCC eligibility, he cites no evidence that any factor set forth in Section 3621(b) was ignored, nor does he cite any evidence that any improper factor was considered.
The BOP's decision concerning an inmate's eligibility for placement in a CCC is a decision concerning the inmate's place of imprisonment. Indeed, the notion that a CCC is a place of imprisonment was central to the decision in Pinto v. Menifee, 04 Civ. 5839 (MHD), 2004 WL 3019760 at *9 (S.D.N.Y. Dec. 29, 2004), on which I relied heavily in reaching the decision set forth in my 2-25-05 Order. In the absence of evidence that either the factors identified by Congress were ignored or that improper factors were considered, the BOP's decision concerning an inmate's place of imprisonment is not subject to judicial review; such decisions "are within the sole discretion of the Bureau of Prisons." United States v. Williams, 65 F.3d 301, 307 (2d Cir. 1995). Thus, petitioner's motion for immediate placement in a CCC must be denied.
Finally, to the extent petitioner seeks discovery, his motion must also be denied. Petitioner seeks discovery concerning the CCC eligibility dates for other inmates who have successfully challenged the December 2002 reinterpretation. The discovery sought would not prove any relevant fact. The issue before me has always been whether petitioner's eligibility date was determined under the appropriate criteria — not the correctness of the actual decision. Decisions made by the BOP in other cases simply do not bear on what factors were considered with respect to petitioner, and the discovery sought by petitioner is, therefore immaterial.
C. Summary
Accordingly, for all the foregoing reasons, respondent's motion for reconsideration is denied and petitioner's motion for immediate release and discover is also denied.
SO ORDERED.