Opinion
No. CR-02-152-S-BLW, CV-03-039-E-BLW
February 12, 2003
ORDER
The Court has before it the Motion for a Temporary Restrianing Order, Writ of Mandamus, and Preliminary Injunction (Docket No. 2) filed by Frank Larry Zeko. The Court finds good cause for and will therefore grant a Temporary Restraining Order ("TRO").
I. BACKGROUND
On November 25, 2002, as amended by the Court's amended judgment entered on November 27, 2002, the Court committed Mr. Zeko to the custody of the Bureau of Prisons to be imprisoned for a total term of 4 months, and ordered direct commitment of Mr. Zeko to the Port of Hope, a community confinement center ("CCC") in Nampa, Idaho. Mr. Zeko reported to the Bureau of Prisons ("BOP") on January 2, 2003, to begin serving his sentence. Rater than place Mr. Zeko at the Port of Hope, as ordered by the Court, the BOP placed Mr. Zeko at the Bannock County Jail, in Pocatello, Idaho. This placement at Bannock County Jail rather than the Port of Hope was due to a recent change by BOP in its interpretation of whether assignment at a CCC constitutes "imprisonment." Under a BOP policy announced in mid-December 2002, assignment to a CCC would no longer constitute "imprisonment" and all prisoners currently assigned to a CCC who had more than 150 days remaining to serve would be relocated to more restrictive facilities.
Mr. Zeko has filed this action under 28 U.S.C. § 2255, seeking an order from the Court requiring the BOP to transfer him back to the Port of Hope and prohibiting the BOP from placing Mr. Zeko at a facility other than the Port of Hope.
II. GOVERNING LEGAL STANDARDS
Mr. Zeko is entitled to a temporary restraining order if he demonstrates that he is likely to succeed on the merits and may suffer irreparable injury, or that serious questions exist on the merits and the balance of hardships tips in his favor. See Self-Realization Fellowship Church v. Ananda, 59 F.3d 902, 913 (9th Cir. 1995). The two tests are not separate but represent a sliding scale in which the required probability of success on the merits decreases as the degree of harm increases. Id. "Under any formulation of the test, the plaintiff must demonstrate that there exists a significant threat of irreparable injury." Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir. 1985).
III. DISCUSSION
The Court's preliminary review of the issues in the case convinces it that Mr. Zeko raises serious questions about the BOP's change in policy. Mr. Zeko presents strong arguments that the Bureau of Prisons may have exceeded its rule-making capacities by creating a retroactive rule without providing public notice and affording an opportunity to comment as required by the Administrative Procedure Act. The BOP's change in policy may further violate Mr. Zeko's Due Process and Equal Protection rights and the Ex Post Facto Clause.
Moreover, and perhaps most importantly, it appears that the Court was without authority to impose the sentence of direct commitment to the Port of Hope and that Mr. Zeko's sentence is therefore illegal and should be vacated. See United States v. Serafini, 233 F.3d 758, 777-78 n. 23 (3d Cir. 2000) (noting that a district court's order of confinement at a CCC as satisfying the requirement for imprisonment would be clearly erroneous and that "a district court has no power to dictate or impose any place of confinement for the imprisonment portion of the sentence")
The Court also finds based upon its preliminary review of the motion, that Mr. Zeko would suffer irreparable harm and that the balance of hardships clearly tips in his favor. The Port of Hope has a work release program in which Mr. Zeko could continue his full-time employment with Auto-Plus, Inc., as an auto buyer and seller. Through his work there, Mr. Zeko generates income that supports a minor child, grandchildren, and his wife. The placement of Mr. Zeko in the Bannock County Jail rather than at the Port of Hope will have dire consequences for Mr. Zeko. Work-release privileges are not available for Mr. Zeko at Bannock County Jail, and Mr. Zeko will therefore lose the income he earns through his full-time employment. Mr. Zeko's placement at the Bannock County Jail also has effectively removed Mr. Zeko's visitation privileges — Mr. Zeko has been placed in the maximum security section of Bannock County Jail, which has extremely restricted visitation privileges, and the distance to Pocatello is so far that his family has had very little opportunity to visit him. In contrast, the Court finds that BOP would suffer little or no harm should Mr. Zeko be transferred to and remain at the Port of Hope.
In conclusion, the Court finds, based on its preliminary review of the record, that Mr. Zeko has raised serious questions as to the BOP's policy of reassignment, as well as the legality of the sentence imposed by the Court. The Court also finds that the balance of hardships tip decidedly in Mr. Zeko's favor and that he faces a substantial risk of irreparable harm should he remain at the Bannock County Jail. The Court will therefore grant Mr. Zeko's Motion for a Temporary Restraining Order pursuant to Fed.R.Civ.P. 65 as set out below. The TRO shall remain in effect until a hearing can be held on Mr. Zeko's Motion for Preliminary Injunction, but not beyond the ten-day period mandated by Fed.R.Civ.P. 65(b). A separate Notice of Hearing will be issued, setting forth the time and date of the hearing on the Motion for Preliminary injunction.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Plaintiff's Motion for Temporary Restraining Order (Docket No. 2-1) is GRANTED. Defendants are directed to immediately transfer Frank Larry Zeko to the Port of Hope in Nampa, Idaho, and are temporarily enjoined from placing Frank Larry Zeko at any facility other than the Port of Hope.
IT IS FURTHER ORDERED that this Temporary Restraining Order shall expire within ten (10) days from entry, unless extended pursuant to Fed.R.Civ.P. 65(b).