Opinion
No. 04-CV-2214.
October 22, 2004
Katten Muchin Zavis Rosenman, New York, NY, Arthur S. Linker, Esq., for the Plaintiffs.
Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, Brooklyn, NY, By: David C. James, Assistant United States Attorney, for the Defendants.
MEMORANDUM, ORDER and JUDGMENT
I. Introduction
Plaintiffs, inmates at Metropolitan Detention Center, Brooklyn, New York ("MDC"), contest the Bureau of Prisons ("BOP") new policy limiting an offender's transfer to a community confinement center ("CCC") to the lesser of the last ten percent of the offender's sentence or six months ("ten percent rule"). They claim that they would be eligible now for transfer to a CCC under the BOP's old policy, which permitted transfer to a CCC for the last six months of sentence. They argue that the ten percent rule is invalid because it is based on an erroneous statutory interpretation, was adopted in violation of the Administrative Procedure Act ("APA"), violates the ex post facto clause and violates their due process rights. They seek habeas corpus relief and class certification. In addition, plaintiffs Albert Jusino, Steven L. Bromley and Mohammed S. Pasha each seek a preliminary injunction requiring the BOP to consider him for transfer under its old policy.
Transfer to a CCC is often of great significance to a prisoner and those he supports. The CCC prisoner can hold down a full time job and begin to become re-integrated into the community and his family while he is under strict supervision, returning to a prison-like setting each night. The family can receive support and a more normal physical and social relationship. The cost of CCC incarceration is less than incarceration in a prison, and the working prisoner can pay for part of CCC expenses.
In light of the decisions of the Courts of Appeal for the First Circuit and Eighth Circuit and several district judges in this circuit invalidating the ten percent rule on statutory grounds, the plaintiffs are granted relief ordering reinstatement of the old policy. A single national practice is desirable in administering our prison system.
II. Facts
A. The Ten Percent RulePrior to December 2002, the BOP allowed prisoners, in appropriate cases, to serve the last six months of their sentence in a CCC regardless of whether six months exceeded ten percent of their sentence. This policy changed in December 2002 based on a memorandum issued by the United States Department of Justice's Office of Legal Counsel ("OLC") concluding that the BOP does not have the statutory authority, as was its practice, to place an offender in a CCC at the beginning of the sentence or to transfer an offender from a prison to a CCC at any time during the sentence. Op. Office of Legal Counsel, U.S. Dep't of Justice, Bureau of Prisons Practice of Placing in Community Confinement Certain Offenders Who Have Received Sentences Of Imprisonment (Dec. 13, 2002), available at www.usdoj.gov/olc/bopimprisonment2.htm (the "OLC Memo"). The memorandum stated that if section 3621(b) of title 18 of the United States Code "were read to confer on BOP unfettered discretion to have offenders serve sentences of imprisonment in community confinement, then the time limitations in section 3624(c) [of that title] on BOP authority to transfer a prisoner to a non-prison site — i.e., for a period, not to exceed six months, of the last 10% of the term of his sentence — would be rendered null with respect to community confinement." Id.
The Attorney General adopted the OLC's position and directed the BOP to comply with it. The BOP then adopted a new policy, implementing the ten percent rule.
The new ten percent rule has prompted substantial litigation. Many courts have granted relief from the new rule based primarily on the ground that the statutory interpretation underlying the rule is erroneous. See, e.g., Elwood v. Jeter, No. 04-2253, 2004 WL 2331643 (8th Cir. Oct. 18, 2004) (rejecting statutory interpretation underlying ten percent rule); Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004) (same); Schoenfeld v. Menifee, No. 04 Civ. 3551, 2004 U.S. Dist. LEXIS 12499 (S.D.N.Y. July 6, 2004) (same); Schorr v. Menifee, No. 04 Civ. 1863, 2004 U.S. Dist. LEXIS 10758 (S.D.N.Y. June 14, 2004) (rejecting application of ten percent rule on ex post facto grounds); Crowley v. Fed. Bureau of Prisons, 312 F. Supp. 2d 453 (S.D.N.Y. 2004) (rejecting ten percent rule on statutory, APA and ex post facto grounds); Grimaldi v. Menifee, No. 04 Civ. 1340, 2004 U.S. Dist. LEXIS 7455 (S.D.N.Y. Apr. 25, 2004) (rejecting ten percent rule on statutory grounds); Pachernikov v. Fed. Bureau of Prisons, No. 04 Civ. 2531, 2004 U.S. Dist. LEXIS 6991 (S.D.N.Y. Apr. 20, 2004) (upholding statutory interpretation underlying ten percent rule but granting relief based on ex post facto grounds); Quintero v. Menifee, No. 04 Civ. 01597, 2004 U.S. Dist. LEXIS 8470 (S.D.N.Y. Apr. 5, 2004) (upholding statutory interpretation underlying ten percent rule but granting relief on ex post facto grounds); Crapanzano v. Menifee, No. 04 Civ. 1052, 2004 U.S. Dist. LEXIS 5738 (S.D.N.Y. Apr. 1, 2004) (rejecting ten percent rule on ex post facto grounds); DiStefano v. Fed. Bureau of Prisons, No. 04 Civ. 0007, 2004 U.S. Dist. LEXIS 3190 (S.D.N.Y Mar. 4, 2004) (rejecting the ten percent rule on statutory grounds); Zucker v. Menifee, No. 03 Civ. 10077, 2004 U.S. Dist. LEXIS 724 (S.D.N.Y. Jan. 21, 2004) (same); Cato v. Menifee, No. 03 Civ. 5797, 2003 U.S. Dist. LEXIS 21289 (S.D.N.Y. Nov. 20, 2003) (rejecting ten percent rule on statutory, ex post facto and APA grounds). But see Benun v. Menifee, No. 04 Civ. 6542, 2004 WL 2149130 (S.D.N.Y. Sept. 22, 2004) (upholding statutory interpretation underlying ten percent rule); Loeffler v. Menifee, 326 F.Supp. 2d 454 (S.D.N.Y. 2004) (rejecting challenge to ten percent rule based on statutory interpretation and ex post facto arguments); Galizia v. Fed. Bureau of Prisons, No. 04 Civ. 5777, 2004 U.S. Dist. LEXIS 16885 (S.D.N.Y. Apr. 24, 2004) (upholding ten percent rule based on statutory interpretation, APA and ex post facto grounds); Roth v. Menifee, No. 04 Civ. 3552, U.S. Dist. LEXIS 16760 (S.D.N.Y. Apr. 20, 2004) (same); Cohn v. Fed. Bureau of Prisons, 302 F.Supp. 2d 267 (S.D.N.Y. 2004) (same); Adler v. Menifee, 293 F.Supp. 2d 363 (S.D.N.Y. 2003) (upholding ten percent rule based on statutory interpretation, APA and ex post facto grounds).
In reaction to the invalidation of the new ten percent rule by many federal courts, the BOP has proposed a rule that categorically limits "inmates' community confinement to the last ten percent of the prison sentence being served, not to exceed six months." 69 Fed. Reg. 51, 213 (Aug. 18, 2004). The proposed rule has not yet been adopted and thus is irrelevant to the instant litigation.
B. Preliminary Injunctions
Plaintiffs Jusino, Bromley and Pasha are each serving federal sentences, ranging from one year and a day to eighteen months of imprisonment. Under the old BOP policy, each would be eligible for immediate transfer to a CCC. Under the new ten percent rule, Jusino cannot be transferred to a CCC until November 30, 2004, Bromley cannot be transferred until December 12, 2004 and Pasha cannot be transferred until November 19, 2004. Each seeks a preliminary injunction, claiming irreparable harm if he is not transferred to a CCC immediately.
Jusino expressed concern for his "common law wife," Tasha Baccous. Baccous is expected to give birth to their second child at the end of October. He claims that Baccous is unable to work due to her "mental illness" and that he will be able to support his family if he is transferred to a CCC. The papers he submitted indicate that Baccous and their child were living in a city shelter before his incarceration, raising the questions of whether he had supported them in the past and whether he would support them if he were transferred to a CCC. In addition, Baccous was diagnosed with depression and bipolar attention deficit order, her alleged "mental illness," in 1997, when she was fifteen years old, and she has apparently ended her treatment and medication for these conditions.
Bromley asserts that his family will suffer irreparable harm if he is not immediately considered for transfer to a CCC. But the record indicates that he seeks transfer to Utah even though his family is located in New Hampshire. Bromley's wife states that she is struggling to make ends meet for their six-and-a-half year old daughter and herself and that she is currently pregnant with their second child.
Pasha asserts that his father is extremely ill and that his family urgently needs his financial support since his sister was recently laid off from her employment and cannot support their parents. No documentation of Pasha's family circumstances was submitted.
III. Law
A. Summary Judgment Standard
Summary judgment shall be granted if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Evidence is evaluated in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
B. Degree of Deference to the OLC/BOP Interpretation
In reviewing an agency's construction of a statute that it administers, the first question is "whether Congress has directly spoken to the precise question at issue." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). If Congress has not directly addressed the question, the court asks "whether the agency's answer is based on a permissible construction of the statute." Id. at 843. The appropriate degree of deference a court should give to an agency's construction is "a respect proportional to its `power to persuade.'" United States v. Mead, 533 U.S. 218, 235 (2001); see also DiStefano, 2004 U.S. Dist. LEXIS 3190, at *11 (according to the BOP's interpretation underlying the ten percent rule "respect proportional to its power to persuade" (internal quotation marks omitted)).
C. Interpretation of Sections 3621(b) and 3624(c)
Section 3621(b) of title 18 of the United States Code reads, in relevant 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. . . .18 U.S.C. § 3621(b) (emphasis added).
Section 3624(c) of title 18 of the United States Code 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.18 U.S.C. § 3624(c) (emphasis added).
The Court of Appeals for the First Circuit, the first appellate court to address the validity of the ten percent rule, rejected the BOP's statutory interpretation. Goldings, 383 F.3d at 21-29. It held that section 3621(b) provides the BOP with the discretion to transfer an offender to a CCC at any time during the sentence, without regard to the temporal limitations of section 3624(c). Id. at 29.
This language [of section 3624(c)] imposes an affirmative obligation on the BOP to take steps to facilitate a smooth re-entry for prisoners into the outside world. It is true that this obligation is qualified. Section 3624(c) does not mandate placement in a CCC prior to release, and it requires the BOP to assure that a prisoner spends the last part of his sentence under pre-release conditions only if practicable. However, a qualified obligation differs from a grant of discretion. Under § 3624(c), the BOP must ensure placement under pre-release conditions except where no such placement is practicable.Id. at 23 (emphasis in original). The Court of Appeals for the Eighth Circuit agreed with Goldings' interpretation. Elwood, 2004 WL 2331643, at *3-*4; see also, e.g., Cato, 2003 U.S. Dist. LEXIS 21289, at *19 ("While section 3624(c) takes away BOP's discretion not to consider community confinement at the end of an inmate's sentence . . . it does not prohibit BOP from doing so earlier if the BOP wishes to do so."); Part II.A., supra (citing cases).
The OLC's interpretation of "place of imprisonment" as not including CCCs for the purposes of section 3621(b) relied upon cases holding that confinement in a CCC is not imprisonment as used in the United States Sentencing Guidelines section 5C1.1; the "BOP's authority must be construed, wherever possible, to comport with the legal requirements that govern sentencing orders." Rejecting the OLC's view, the Court of Appeals for the First Circuit found that it is not the facility that determines whether a person is imprisoned but "the fact and nature of the offender's sentence" and being in the custody of the BOP. Goldings, 383 F.3d at 25. It found that the term "penal or correctional facility" for purposes of interpreting the ten percent rule includes CCCs. Id. at 26.
Arguably the BOP's policy is contrary to sound public policy as well as the plain meaning of section 3621(b) and section 3624(c) of title 18 of the United States Code. When appropriate, placement in a CCC promotes the prisoner's reintegration into society, reduces unnecessary strains on the prisoner's family and public welfare and lowers prison costs. See Costs of Incarceration and Supervision, The Third Branch, May 2004, at 9 (indicating that confinement in a CCC costs approximately $19,087 annually, payable in part from the prisoner's earnings, whereas imprisonment costs approximately $23,183 annually). In keeping with the principle of uniformity and good sense, and in harmony with the rulings of other courts, this court declares the new BOP policy prohibiting assignment to a CCC until the last ten percent of a prisoner's sentence invalid.
D. Standard for Granting Preliminary Injunction
To obtain a preliminary injunction, the moving party must establish (1) "that it is likely to suffer irreparable injury if the injunction is not granted," and (2) "either (a) a likelihood of success on the merits of its claim, or (b) the existence of serious questions going to the merits of its claim and a balance of the hardships tipping decidedly in its favor." Conn. Dep't of Envtl. Prot. v. Occupational Safety and Health Admin., 356 F.3d 226, 230 (2d Cir. 2004) (quoting Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999) (internal quotation marks omitted)). In a case where "the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme," a party must meet the likelihood-of-success standard. Id. (internal quotation marks omitted).
E. Class Certification
The Court of Appeals for the Second Circuit has approved habeas corpus class actions. Sero v. Preiser, 506 F.2d 1115, 1125-26 (2d Cir. 1974). Under the All Writs Act, 28 U.S.C. § 1651, a court has the power "to fashion for habeas actions `appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.'" Sero, 506 F.2d at 1125 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)).
IV. Application of Law to the Facts
A. Preliminary InjunctionsThe motions for preliminary injunctions are denied. Discrepancies in the record failed to support a finding of irreparable harm. See Part II.B., supra. The BOP should have an opportunity to exercise discretion in these cases.
B. Class Certification
The motion for class certification is denied. The court has in effect granted the substantive relief sought by the plaintiffs. A class action serves no purpose.
V. Conclusion
The BOP's policy reflected in the new ten percent rule is invalid. The defendants are directed to consider the plaintiffs for placement in a CCC in a manner consistent with the BOP's old policy, in effect prior to December 2002.
SO ORDERED.