MEMORANDUM OPINION AND ORDER

HENRY PITMAN, Magistrate Judge

I. Introduction

Petitioner, an inmate in the custody of the United States Bureau of Prisons ("BOP"), petitions the Court pursuant to 28 U.S.C. §§ 1361, 2201 and 2241 for an Order compelling respondent to release petitioner to community confinement in a halfway house when petitioner has six months remaining on his sentence after deduction of good time credits. The parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the petition is granted in part.

II. Facts

On October 8, 2002, petitioner appeared before the Honorable Loretta A. Preska, United States District Judge, and pleaded guilty to a one-count information charging him with conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371. The charge against petitioner arose out of conduct that occurred from 1996 through 1997. Petitioner was sentenced on April 21, 2004 to a term of imprisonment of fifteen (15) months to be followed by a three (3) year term of supervised release and certain monetary penalties not relevant to this matter. Petitioner was permitted to surrender directly to the facility designated for the service of his sentence on July 30, 2004. To date, petitioner has received the maximum good-time credit permitted by law, see generally 18 U.S.C. § 3624(b)(1), and assuming that he continues to receive the maximum good time permitted, his expected release date is estimated to be August 30, 2005.

The current dispute arises out of a change in the BOP's interpretation of Sections 3621(b) and 3624(c) of Title 18. Section 3621(b) provides, in pertinent part:

(b) Place of imprisonment. — 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, considering —

(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 —

(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. . . .

Section 3624(c) provides:

(c) 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. The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody.

Prior to December 2002, the BOP interpreted Section 3621(b) as taking precedence over Section 3624(c) and as including community confinement centers ("CCCs"), or half-way houses, within the definition of "penal or correctional facilit[ies]." Thus, "`before December 2002, it was possible for . . . inmates to serve their entire terms of "imprisonment" in CCCs.'" Supplementary Information Published in Connection with Amendment to 28 C.F.R. § 570, 70 Fed. Reg. 1659, 1659 (Jan. 10, 2005),quoting Supplementary Information Published in Connection with Proposed Amendment to 28 C.F.R. Part 570, 69 Fed. Reg. 51213, 51213 (Aug. 18, 2004). See Pinto v. Menifee, 04 Civ. 5839 (MHD), 2004 WL 3019760 at *2 (S.D.N.Y. Dec. 29, 2004);Zucker v. Menifee, 03 Civ. 10077 (RJH), 2004 WL 102779 at *2 (S.D.N.Y. Jan. 21, 2004). In December 2002, however, BOP's Office of Legal Counsel concluded that its "decades-long policy,"United States v. Arthur, 367 F.3d 119, 120-21 (2d Cir. 2004), was wrong, and that Section 3624(c) was a limit on the discretion granted by Section 3621(b). The BOP's Office of Legal Counsel concluded that an inmate could be designated to a CCC only in connection with pre-release programming for the lesser of six months or ten percent of the inmate's sentence after the deduction of good time credits (the "12-20-02 Policy") (Memorandum from Michael B. Cooksey and Christopher Erlewire, dated December 20, 2002, and annexed as part of Exhibit B to the Declaration of Richard E. Signorelli, Esq., dated December 17, 2004). It is this change in policy that petitioner challenges here.

While this matter was pending, petitioner's case was reviewed under the 12-20-02 Policy. The BOP concluded that petitioner should be designated to a CCC on or after July 23, 2005 for the last ten percent of his sentence. Had petitioner's case been reviewed under the BOP policy in effect prior to the 12-20-02 Policy, petitioner could have been designated to a CCC at any time during his sentence including the last six months of his sentence.

Petitioner challenges the 12-20-02 Policy on three grounds: (1) it violates the constitutional prohibition against ex post facto laws; (2) it is based on an incorrect interpretation of Sections 3621 and 3624, and (3) the 12-20-02 Policy violates the Administrative Procedure Act ("APA") because it constitutes a new rule promulgated without compliance with the APA's notice and comment procedures.

III. Analysis

The BOP's 12-20-02 Policy has spawned a substantial amount of litigation in this and other Circuits, and the current contours of the legal landscape were recently exhaustively summarized by the Honorable Michael H. Dolinger, United States Magistrate Judge, in Pinto v. Menifee, supra, 2004 WL 3019760 at *4-*5, familiarity with which is assumed. Although the Court of Appeals for the Second Circuit has not yet reached the issue, the majority of judges in this court who have considered the issue have concluded that the BOP's 12-20-02 Policy is unlawful on some or all of the grounds asserted by petitioner. Pinto v. Menifee, supra, 2004 WL 3019760 at *4-*5 (collecting cases).

To the extent that petitioner contends the 12-20-02 Policy is based on an incorrect interpretation of Sections 3621 and 3624 and violates the APA, I agree with and follow the decisions of the Honorable Michael B. Mukasey, United States District Judge, in Terry v. Menifee, 04 Civ. 4505 (MBM), 2004 WL 2434978 (S.D.N.Y. Nov. 1, 2004), and Magistrate Judge Dolinger in Pinto v. Menifee, supra, 2004 WL 3019760. Also, like Judge Mukasey and Magistrate Judge Dolinger, I decline to reach the ex post facto issue because it is unnecessary to do so. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (courts should resolve constitutional issues only when there is no alternative basis on which the case can be resolved).

Shortly before I heard oral argument in this matter, I was advised by counsel for respondent that the BOP had finalized an amendment to 28 C.F.R. Part 570. This amendment purports to remedy the deficiencies found by those courts that had rejected the 12-20-02 Policy on the ground that it was based on an incorrect interpretation of Sections 3621 and 3624 or violated the APA. "Pursuant to this new rule . . . BOP `has determined to exercise its discretion [under 18 U.S.C. § 3621(b)] categorically to limit inmates' community confinement to the last ten percent of the prison sentence being served, not to exceed six months'" (Letter of Assistant United States Attorney John P. Cronan, dated February 9, 2005, at 1). Thus, although the BOP has now apparently concluded that (1) Section 3624(c) does not limit the discretion granted the BOP under Section 3621(b) (see Respondent's Memorandum of Law in Opposition to Petition for Writs of Habeas Corpus and Mandamus by a Prisoner in Federal Custody, dated Jan. 21, 2005, at 4 n. 2) and (2) that CCCs constitute "penal or correctional facilit[ies]," it has exercised that discretion on a categorical basis through its rule-making power. This new rule (the "2-14-05 Rule") became final and effective on February 14, 2005. Although 2-14-05 Rule has not yet been applied to petitioner, it appears that it will be applied as a result of my conclusion that the 12-20-02 Policy is unlawful. At my request, the parties have submitted letter briefs addressing whether the 2-14-05 Rule overcomes the infirmities that the courts have found with the 12-20-02 Policy. Given the fact that petitioner is currently approximately six (6) months away from his release date and the virtual certainty that the 2-14-05 Rule will be applied to petitioner as a result of my finding that the 12-20-02 Policy is unlawful, I conclude that the merits of the 2-14-05 Rule should be considered at this time. In light of the proximity of petitioner's release date, any other result will, in all probability, effectively deny him the right to challenge the 2-14-05 Rule.

Although I agree with respondent that the 2-14-05 Rule remedies some of the defects that existed in the 12-20-02 Policy, it still suffers from fatal flaws.

Since the BOP's 2-14-05 Rule either assumes or acknowledges that the BOP has discretion to designate an inmate to a CCC at any point in his sentence, it appears to overcome the argument that was the basis for the decisions in Pinto v. Menifee, supra, 2004 WL 3019760 at *6-*11, and Terry v. Menifee, supra, 2004 WL 2434978 at *3-*6, that the BOP has interpreted Sections 3621 and 3624 incorrectly. In addition, since notice of the 2-14-05 Rule was published in the Federal Register and the public was given time to comment, it appears to comply with the "notice and comment" requirements of the APA. See 5 U.S.C. § 551, 553.

Nevertheless, the 2-14-05 Rule fails because the BOP has not exercised its discretion on the basis of the factors set forth in Section 3621(b). Section 3621(b) sets forth factors that the BOPmust consider in determining the facility to which a prisoner is designated. As stated in the Report of the Senate Committee on the Judiciary accompanying the enactment of Section 3621, S. Rep. No. 98-225, reprinted in 1984 U.S.C.C.A.N. 3182, 3324-25:

In determining the availability or suitability of the facility selected, the Bureau is specifically required [by Section 3621(b)] 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 Bureau of Prisons may designate the place of imprisonment in an appropriate type of facility, or may transfer the offender to another appropriate facility.

In the absence of unusual circumstances, Federal courts currently will not review a decision as to the place of confinement. The Committee, by listing factors for the Bureau to consider in determining the appropriateness or suitability of any available facility, does not intend to restrict or limit the Bureau in the exercise of its existing discretion so long as the facility meets the minimum standards of health and habitability of the Bureau, but intends to set forth the appropriate factors that the Bureau should consider in making the designations.

(Emphasis added.) See United States v. Gayle, 342 F.3d 89, 94 (2d Cir. 2003) ("The most enlightening source of legislative history is generally a committee report . . . which we have identified as among `the most authoritative and reliable materials of legislative history.'").

The principal problem with the 2-14-05 Rule is that it does not consider any of the factors that the BOP, in the words of the Senate Committee on the Judiciary, "is specifically required" to consider. With respect to the possibility of placement in a CCC prior to the last ten per cent or six months of the prisoner's sentence, the 2-14-05 Rule simply posits a uniform rule that entirely ignores Section 3621(b)'s command. No consideration is given to the prisoner's offense of conviction, the prisoner's history and characteristics or any of the other factors identified in the statute.

Respondent defends the 2-14-05 Rule by claiming that Section 3621(b) does not require individualized decisions and that even if it did, the BOP could make those decisions on a categorical basis through its rule-making power. Respondent is partially correct. Although there can be little question that the BOP can exercise its discretion in a categorical manner through its rule-making power, Lopez v. Davis, 531 U.S. 230, 241-42 (2001), its exercise of discretion must still be guided by the factors Congress has identified. New York Cross Harbor R.R. v. Surface Transp. Bd., 374 F.3d 1177, 1181 (D.C. Cir. 2004) ("An agency acts arbitrarily and capriciously if it reverse[s] its position in the face of a precedent it has not persuasively distinguished, . . . and if it fails to consider all the relevant factors in reaching its decision." (inner quotation marks omitted));Riverkeeper, Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004) (judicial review of agency action under the APA is narrow but includes inquiry into "whether the [agency] decision was based on a consideration of the relevant factors. . . ." (inner quotations marks omitted)). Any other result would permit an agency to ignore the law.

Moreover, there is no inconsistency between recognizing the BOP's right to exercise its discretion on a categorical basis and requiring that it consider the factors Congress has specifically identified as relevant. For example, if the BOP were to find that all prisoners convicted of a particular offense, or all prisoners with a specified number of convictions, presented a grave and ongoing danger to society, the BOP could conclude that that danger necessarily outweighed the other factors in Section 3621(b) and precluded such prisoners' designation to a CCC until some short, fixed increment before the expiration of their sentence. Such a hypothetical rule would consider the nature and circumstance of the offense or the history and characteristics of the offender, as required by Section 3621(b)(2) and (3), and, under certain circumstances, constitute a categorical finding that either the nature of the offense or the history of the offender outweighed the other statutory factors. Such a rule would constitute a permissible categorical exercise of discretion because it was based on the factors identified in Section 3621(b). The 2-14-05 Rule, however, simply ignores the Section 3621(b) factors.

In its responses to comments regarding the 2-14-05 Rule, the BOP answered this criticism with the following statement: "The Bureau will continue to evaluate [the factors set forth in Section 3621(b)] when making individual designations to appropriate Bureau facilities, and this rule will not adversely affect such individualized determinations." Supplementary Information Published in Connection with Amendment to 28 C.F.R. § 570, supra, 70 Fed. Reg. at 1660. This answer does not withstand analysis. Effectively, the BOP is stating that it will consider the Section 3621(b) factors with respect to designations to some "penal or correctional facilit[ies]," but not with respect to CCCs. Since a CCC is a "penal or correctional facility," Pinto v. Menifee, supra, 2004 WL 3019760 at *9; Terry v. Menifee, supra, 2004 WL 2434978 at *5, the BOP's explanation draws an arbitrary and unreasoned distinction as to when it will consider the Section 3621(b) factors and when it will not.

Finally, respondent defends the 2-14-05 Rule on the ground that it will promote the uniformity required by Section 3621(b)'s mandate that "[i]n designating the place of imprisonment . . ., there shall be no favoritism given to prisoners of high social or economic status." Although the 2-14-05 Rule will, no doubt, result in uniformity of treatment, it achieves that end only by ignoring the factors the BOP "is specifically required" to consider. Since courts must construe statutes in a manner that gives effect to all of their provisions, APWU v. Potter, 343 F.3d 619, 626 (2d Cir. 2003); In re Treco, 240 F.3d 148, 157 (2d Cir. 2001); United States v. Gitten, 231 F.3d 77, 80 (2d Cir. 2000), a construction of Section 3621 that gives precedence to one provision of the statute while ignoring others cannot stand.

Since neither the 12-20-02 Policy nor the 2-14-05 Rule comport with the requirements of Section 3621(b), the BOP cannot utilize either to determine whether and when petitioner should be designated to a CCC. Nevertheless, that does not mandate petitioner's immediate placement in a CCC; Sections 3621(b) and 3624(c) unquestionably invest the BOP with the discretion to determine if and when a prisoner should be designated to a CCC. Like Chief Judge Mukasey and Magistrate Judge Dolinger, I conclude that the appropriate remedy is to order 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 other 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, 2005 amendment to 28 C.F.R. § 570.21]." Terry v. Menifee, supra, 2004 WL 2434978 at *6; accord Pinto v. Menifee, supra, 2004 WL 3019760 at *14. Respondent is to make this determination promptly, and, in no event, later than twenty (20) days from the date of this Order.

Finally, petitioner seeks an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Petitioner's fee application must be denied. Controlling precedent in this Circuit holds that a habeas corpus petition in which the prisoner seeks to be moved is not a civil action within the meaning of the EAJA. Boudin v. Thomas, 732 F.2d 1107, 1112-13 (2d Cir. 1984). Petitioner here seeks to be transferred from Otisville Prison Camp to a CCC, and, therefore, this case appears to be squarely within the holding of Boudin. In addition, even if this habeas corpus petition were a civil action within the meaning of the EAJA, petitioner's application for fees would still have to be denied. Even where the EAJA is applicable, a court may deny a fee award if "the court finds that the position of the United States was substantially justified. . . ." 28 U.S.C. § 2412(d)(1)(A). The government's position is "substantially justified" within the meaning of the EAJA if it has "a reasonable basis in both law and fact." Sierra Club v. United States Army Corps of Eng's, 776 F.2d 383, 393 (2d Cir. 1985). Given the divergence of opinion among judges concerning the legality of the 12-20-02 Policy, see Pinto v. Menifee, supra, 2004 WL 3019760 at *4-*5, there can be little question that the government's position had a reasonable basis and was substantially justified.

IV. Conclusion

Accordingly, for all the foregoing reasons, the petition is granted and respondent is ordered, 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. Respondent is to make this determination promptly, and, in no event, later than twenty (20) days from the date of this Order. Petitioner's application for discovery and attorney's fees is denied.

SO ORDERED.