Opinion
Civil Action No. 06-40147-FDS.
November 8, 2006
MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO DISMISS
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner Robert Bullock is serving an 18-month term of incarceration for failure to pay payroll taxes and making a false statement in a loan application. He is presently incarcerated at the Federal Medical Center — Devens in Ayer, Massachusetts. His projected statutory release date (assuming he is granted all available good conduct time) is January 7, 2007.
Petitioner, proceeding pro se, challenges a rule promulgated by the Bureau of Prisons ("BOP") on January 10, 2005, that categorically precludes the assignment of any federal prisoner to a Community Corrections Center ("CCC") (commonly known as a halfway house) except at the end of the prisoner's sentence. See 28 C.F.R. §§ 570.20, 570.21. Respondent David L. Winn has moved to dismiss the petition for failure to state a claim upon which relief can be granted.
This is at least the sixth challenge to the regulation in this District. See Putnam v. Winn, 441 F. Supp. 2d 253 (D. Mass. 2006); Perez v. Winn, No. 06-40194 (D. Mass. Oct. 25, 2006); Humiston v. Winn, No. 06-40160 (D. Mass. Sept. 25, 2006); Tahajian v. Winn, No. 06-11134 (D. Mass. Sept. 25, 2006); Donnell v. Winn, No. 06-40167 (D. Mass. Sept. 22, 2006). All five prior decisions, as well as the decisions of three circuits, have held that the regulations violate federal law. See Levine v. Apker, 455 F.3d 71 (2nd Cir. 2006); Fults v. Sanders, 442 F.3d 1088 (8th Cir. 2006); Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3rd Cir. 2005).
Several other district opinions (some of which have been reversed) and the dissents by Judge Raggi of the Second Circuit in Levine, Judge Fuentes of the Third Circuit in Woodall, and Judge Riley of the Eighth Circuit in Fults have reached an opposite conclusion. See, e.g., Levine, 455 F.3d at 87 (Raggi, J., dissenting); Woodall, 432 F.3d at 244 n. 10 (listing cases) 251 (Fuentes, J., dissenting); Fults, 442 F.3d at 1093 (Riley, J., dissenting); Lee v. United States, 2005 WL 2179796 (S.D. Ala. Sept. 6, 2005). For the reasons set forth below, this Court respectfully sides with the minority view, and will dismiss the petition for failure to state a claim.
I. Background
The background of this controversy was set forth in the opinion of Judge Saris in Putnam v. Winn, 441 F. Supp. 2d at 253. For the sake of convenience, that background is set forth verbatim below.
A. Statutory and Regulatory Framework
In 18 U.S.C. § 3621(b), Congress gave the BOP the authority to designate an inmate's place of imprisonment. The statute provides in pertinent part:
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 —
(1) the resources of the facility contemplated;
(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.18 U.S.C. § 3621(b) (emphasis added). Section 3624(c) supplemented this authority by directing the BOP to place federal inmates under conditions affording an opportunity and preparation for re-entry into the community shortly before the conclusion of their sentences. Section 3624(c) states:
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.18 U.S.C. § 3624(c).
Prior to December 20, 2002, the Bureau's interpretation of the statutory authority was set forth in BOP Program Statement 7310.04. Section 5 of that document stated that a CCC met the definition of a penal or correctional facility under 18 U.S.C. § 3621(b) and indicated that the BOP was not restricted in designating an inmate to a CCC by § 3624(c)'s time limits.
In response to guidance from the Department of Justice, Office of Legal Counsel, the BOP changed its policy and required instead that pre-release CCC designations be limited in duration to "the last ten percent of the prison sentence being served, not to exceed six months." 69 Fed. Reg. 51213 (Aug. 18, 2004). In Goldings v. Winn, 383 F.3d 17, 28 (1st Cir. 2004), the First Circuit found this new statutory interpretation to be erroneous:
Under § 3621(b), the BOP has discretionary authority to designate any available penal or correctional facility that meets minimum standards of health and habitability as the place of a prisoner's imprisonment, and to transfer a prisoner at any time to such a facility. A community correction center is a correctional facility and therefore may serve as a prisoner's place of imprisonment. "When as now, the plain language of a statute unambiguously reveals its meaning, and the revealed meaning is not eccentric, courts need not consult other aids to statutory construction." Because the intent of Congress is clear in its grant of discretionary authority to the BOP to transfer a prisoner to any available penal or correctional facility, we must give effect to that intent. The defendants' interpretation of § 3621(b) is contrary to the plain meaning of the statute; it is not entitled to judicial deference.Id. at 28 (citations and footnote omitted). In a concurring opinion, Judge Howard cautioned:
But just because the BOP may assign prisoners to CCCs does not mean that it must do so. As our holding states, BOP is authorized to transfer prisoners to CCCs at any time during their prison terms. Consistent with the question presented by this appeal, the lead opinion does not address whether § 3621(b) places any constraints on the manner in which BOP may choose to exercise its discretion to make CCC placements.Id. at 33 (citation omitted). Relying on Lopez v. Davis, 531 U.S. 230, 243-244 (2001), Judge Howard added: "Even if the statutory criteria for making assignments and transfers could be read to guarantee some sort of individualized treatment, it is apparent to me that BOP would still have the authority to make a categorical rule excluding some or all CCC placements, except as required for end of sentence placements governed by § 3624(c)." Id. (footnote omitted).
B. The Categorical Imperative
On August 18, 2004, the BOP proposed a new rule governing the designation of inmates to CCCs. 69 Fed. Reg. 51213 (Aug. 18, 2004). The rule was finalized on January 10, 2005 and became effective on February 14, 2005. 70 Fed. Reg. 1659 (Jan. 10, 2005). The rule was codified in 28 C.F.R. §§ 570.20, 570.21.
§ 570.20 What is the purpose of this subpart?
(a) This subpart provides the Bureau of Prisons' (Bureau) categorical exercise of discretion for designating inmates to community confinement. The Bureau designates inmates to community confinement only as part of pre-release custody and programming which will afford the prisoner a reasonable opportunity to adjust to and prepare for re-entry into the community.
(b) As discussed in this subpart, the term "community confinement" includes Community Corrections Centers (CCC) (also known as "halfway houses") and home confinement.
§ 570.21 When will the Bureau designate inmates to community confinement?
(a) The Bureau will designate inmates to community confinement only as part of pre-release custody and programming, during the last ten percent of the prison sentence being served, not to exceed six months.
(b) We may exceed these time-frames only when specific Bureau programs allow greater periods of community confinement, as provided by separate statutory authority (for example, residential substance abuse treatment program ( 18 U.S.C. 3621(e)(2)(A)), or shock incarceration program ( 18 U.S.C. 4046(c)).
Citing Lopez, the BOP expressly concluded that its categorical exercise of discretion was permissible under Supreme Court precedent upholding rules of general applicability even where a statutory scheme requires individualized determinations. 70 Fed. Reg. 1660-61 (Jan. 10, 2005).
II. Analysis
This case presents a relatively narrow legal question, not a broad question of policy. It is not whether community confinement for federal prisoners represents enlightened penal policy or promotes disrespect for the law, or whether the regulations are a good idea or a bad idea, or whether they are fair or unfair. Rather, the question is simply whether § 3621(b), or any other statute or principle of law, prohibits the BOP from promulgating a categorical rule excluding CCC placements except as required by § 3624(c).
A. The Statutory Framework
The Court begins its analysis, as it must, with the text of the relevant statutes. Section 3621(b) first states that the Bureau of Prisons "shall designate the place of the prisoner's imprisonment." It then states that BOP "may designate any available penal or correctional facility" that meets minimum standards and that the Bureau determines to be appropriate and suitable, "considering" five statutory factors. And it states that BOP "may at any time, having regard for the same matters [i.e., the five statutory factors], direct the transfer of a prisoner from one penal or correctional facility to another." Section 3624(c), in turn, states that BOP "shall, to the extent practicable, assure" that a prisoner spends a reasonable part, not to exceed six months, of the last 10 per cent of his prison term under "conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community [e.g., a CCC]." (all emphases added).
The Court assumes for present purposes, without deciding, that the terms "considering" and "having regard for" are synonymous in this context.
Thus, when a prisoner enters the system, BOP must assign ("shall designate") that prisoner to a facility. It may assign ("may designate") the prisoner to any facility that meets minimum standards and is appropriate and suitable, considering the five individualized factors set forth in the statute. When a prisoner leaves the system, BOP must ("shall assure"), to the extent practicable, provide conditions that afford the prisoner an opportunity to prepare for and adjust to re-entry — e.g., assign the prisoner to a CCC. In between, BOP may transfer ("may . . . direct the transfer of") a prisoner to another facility, "having regard for" the five individualized factors.
The regulations at issue provide, in substance, that BOP will designate prisoners to CCCs only as part of the pre-release transition process (with some exceptions not relevant here).
B. The Chevron Standard
This case involves neither an initial designation nor an end-of-sentence assignment, nor an actual transfer to a facility, but an anticipated (or, more precisely, hoped-for) mid-term transfer to a CCC. The regulations categorically deem petitioner (and all other federal prisoners) effectively ineligible for such a transfer. He contends that the regulations violate the statute, because the statute requires him to receive individualized, not categorical, consideration for any transfer.
The analytical framework for resolving that issue is set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). In Chevron, the Supreme Court established a two-step analysis for reviewing an agency's statutory construction. Chevron, 467 U.S. at 842-43. The analysis begins with "whether Congress has directly spoken to the precise question at issue." If Congress's intent is clear, "the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. If Congress has not expressed its intent unambiguously, or if the Congress has left a gap for the agency to fill, the regulation is "given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute." Id. at 843-44; see also Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 124 (2004). Under this second step, the agency's construction is accorded substantial deference. Id. at 844; see United States v. Mead Corp., 533 U.S. 218, 227-28 (2001) ("`considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer.'") (citation omitted). This Court should not simply substitute its judgment for that of the agency. See Mead, 533 U.S. at 229 ("a reviewing court has no business rejecting an agency's exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency's chosen resolution seems unwise").
1. Step One: Whether Congress Has Directly Spoken to the Question
The first question under Chevron is whether Congress has directly spoken to the precise question at issue: that is, whether Congress intended in § 3261(b) to prohibit the categorical exclusion of certain prisoners from CCCs.
At the outset, the Court notes that it is not entirely clear whether the determination that a prisoner is eligible for a mid-term transfer (that is, a transfer after the initial assignment but before the end-of-sentence transitional transfer) requires individualized consideration. As to transfers, § 3261(b) is permissive, not mandatory: it provides that BOP "may" transfer a mid-term prisoner to another facility. BOP is thus under no obligation to transfer any prisoner at all, other than those who are at the end of their sentences; conversely, a mid-term prisoner has no right to be transferred. And the statute is entirely silent as to which prisoners should be eligible for consideration for a transfer. Compare Succar v. Ashcroft, 394 F.3d 8, 10 (1st Cir. 2005) (immigration statute defined who was eligible for adjustment of status).
Of course, BOP routinely transfers prisoners from one facility to another. But petitioner is not complaining about an actual transfer (e.g., "I was transferred from prison x to prison y, without individualized consideration as to whether I should have been placed at a CCC"), but a potential transfer. He seems to be arguing that he (and all other federal prisoners) should be eligible at all times for transfer to any facility, subject only to the individualized considerations set forth in § 3621(b). That argument conflates eligibility for transfer (i.e., should this prisoner be considered for transfer?) with the transfer decision itself (i.e., should this prisoner be transferred?). The Court will nonetheless assume that the statute requires individualized consideration of transfer eligibility and transfer decisions.
In any event, the Court will assume for present purposes that § 3621(b) does, in fact, require individualized determinations for the transfer of prisoners, and that the requirement applies equally to actual transfer decisions and potential transfer eligibility. The question then becomes whether the categorical exclusion set forth in the regulations is nonetheless permissible. The analysis of that question begins with the Supreme Court's decision in Lopez v. Davis, 531 U.S. 230 (2001). In Lopez, the statute at issue provided that the sentence of a prisoner convicted of a nonviolent offense who completed a substance abuse program "may be reduced" by up to one year. The Bureau of Prisons promulgated a rule that, among other things, categorically excluded prisoners whose current offense was a felony involving a firearm. Id. at 235. The Supreme Court noted that the statute granted BOP the discretion to reduce the period of imprisonment for a nonviolent offender who successfully completed drug treatment, but that Congress did not "identif[y] any further circumstance in which the Bureau either must grant the reduction, or is forbidden to do so." Id. at 242. The Court concluded that the issue was whether the regulation was entitled to Chevron deference, that is, whether the agency had reasonably filled a statutory gap. Id. It then held that the regulation was reasonable under the circumstances. Id. at 242-44. In so concluding, the Court observed:
We also reject Lopez's argument, echoed in part by the dissent, that the agency must not make categorical exclusions, but may rely only on case-by-case assessments. '[E]ven if a statutory scheme requires individualized determinations,' which this scheme does not, 'the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority.' The approach pressed by Lopez — case-by-case decisionmaking in thousands of cases each year — could invite favoritism, disunity, and inconsistency. The Bureau is not required continually to revisit `issues that may be established fairly and efficiently in a single rulemaking proceeding.'Id. at 243-44 (citations and footnotes omitted; emphasis added).
As noted, the Court assumes for present purposes that § 3621(b) requires individualized determinations. Under the clear language of Lopez, categorical rulemaking by BOP to resolve an issue of general applicability as to those individualized determinations is nonetheless proper unless Congress has "clearly express[ed] an intent to withhold that authority."
A clear expression of intent by Congress to withhold authority for categorical rulemaking cannot be inferred simply from the fact that Congress required individualized determinations. Such an argument is entirely circular: it is nonsensical to assert that "categorical rulemaking is appropriate where Congress has required individualized determinations — unless Congress has required individualized determinations." Thus, it is not enough that the statute requires that the BOP "hav[e] regard for" the five statutory factors when it makes a transfer, and that the five factors (or at least some of them) expressly contemplate individualized determinations. If Lopez means what it says — and this Court must assume that it does — something else is clearly required.
That "something else" appears to be entirely lacking in § 3621(b). Congress did not, of course, expressly prohibit categorical rulemaking under the statute. It did not expressly require BOP to afford all inmates (or any subset of inmates, other than those at the end of their sentences) an opportunity for placement in a CCC. Nor did it expressly prohibit BOP from affording all inmates such an opportunity. It did not even mention, much less favor or disfavor, any particular class of correctional facility. At a minimum, if there is an expression of Congressional intent to withhold the authority from the BOP to engage in categorical rulemaking, that expression is far from clear. See Goldings v. Winn, 383 F.3d at 33-34 (Howard, J., concurring); but see Levine, 455 F.3d at 85-87 (holding that the regulations violate § 3621(b) because the statute requires BOP to make individualized decisions); Fults, 442 F.3d at 1091; Woodall, 432 F.3d at 247.
That conclusion would be more plainly obvious if the categorical rulemaking were more narrow. For example, if BOP had promulgated narrow rules based on the "resources of the facility" (e.g., no transfers may be made to a CCC that is at full capacity), the "nature and circumstances of the offense" (e.g., no prisoners serving life sentences or sentences for murder may be transferred to a CCC), or the "history and characteristics of the prisoner" (e.g., no prisoner with a history of escape may be transferred to a CCC), application of the Lopez principle would hardly raise an eyebrow. If its application here is more troubling, it is because the regulation sweeps much further, effectively making all mid-term federal prisoners ineligible for assignment to a CCC. The Lopez principle nonetheless remains the same: even where the statute requires individualized consideration, categorical rulemaking is permitted unless clearly prohibited by Congress. No such clear prohibition is present here.
2. Step Two: Whether the Regulations Are Arbitrary, Capricious, or Manifestly Contrary to the Statute
Once it is clear that categorical rulemaking is permitted under § 3621(b), the issue becomes whether the regulations are entitled to deference under the second step of Chevron — that is, whether the regulations are arbitrary, capricious, or manifestly contrary to the statute. BOP has offered at least three rationales for the regulations.
First, according to BOP, "[r]equiring federal inmates to serve their sentences in Bureau institutions more closely adheres to the spirit and intent of Federal criminal law," 70 Fed. Reg at 1662. Put another way, BOP has concluded that "it does not generally consider CCCs appropriate and suitable facilities for the service of incarceratory sentences." Levine v. Apker, 455 F.3d at 89 (Raggi, J., dissenting).
BOP has also stated that it took into account "any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2)," 69 Fed. Reg. at 51,214, which is one of the statutory factors. 18 U.S.C. § 3621(b)(5). BOP explained that the February 2005 Rules would support the policy of the Sentencing Commission restricting the availability of community confinement in lieu of imprisonment to certain limited situations provided in the Sentencing Guidelines.
Second, BOP states that CCCs are "particularly well suited as placement options for the final portion of offenders' prison terms," 70 Fed. Reg. at 1660, and that "[b]y ensuring that offenders sentenced to prison terms not be placed in CCCs except during the last ten percent of their prison sentences (not to exceed six months), the new rule will help ensure that CCCs remain available to serve the purposes for which their resources make them best suited." Id.
Third, BOP contends that "[i]n 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." 70 Fed. Reg. at 1660. BOP's pre-December 2002 policy practices, "which allowed individualized CCC decisions for each inmate upon initial prison designation, created the possibility that it would unintentionally treat similar inmates differently." Id. By imposing a categorical rule regarding CCC placements, the new regulations help to ensure that certain prisoners will not benefit from favoritism. In this regard, the February 2005 Rules "promote Congress' goal of eliminating unwarranted disparities in the sentencing and handling of inmates and also eliminat[e] any concern that the Bureau might use community confinement to treat specific inmates or categories of inmates more leniently." Id.; see Lopez, 531 U.S. at 244 (affirming BOP's categorical exercise of discretion and noting that "case-by-case decisionmaking in thousands of cases each year . . . could invite favoritism, disunity, and inconsistency").
In addition, BOP expressly stated that it "carefully considered all of the statutorily-specified factors" in promulgating the regulations. 69 Fed. Reg. at 51, 214. And it stated that it continues to consider § 3621(b)'s nonexhaustive list of factors when making placement decisions. 70 Fed. Reg. at 1660 ("The Bureau will continue to evaluate these factors [set forth in § 3621(b)] when making individual designations to appropriate facilities, and this rule will not adversely affect such individualized determinations.").
Those conclusions are far from arbitrary or capricious, and are not manifestly contrary to the statute. In the words of Judge Raggi in her dissent in Levine:
The BOP might reasonably conclude, as it implicitly did here, that, regardless of an individual prisoner's offense, history, and personal characteristics, or any statement made by a sentencing judge, other factors such as the limited availability of CCC resources, the particular suitability of CCCs to other statutory mandates, the policy statements of the Sentencing Commission, and the statutory prohibition on social and economic favoritism, combine to warrant a categorical rule excluding CCC facilities from consideration in general § 3621(b) designations. Whatever the merits of this rule, it does not alter the applicability of § 3621(b)'s five factors when the BOP designates prisoners to those facilities that are deemed suitable, either generally pursuant to § 3621(b) or specifically pursuant to other statutory mandates.455 F.3d at 91.
Accordingly, the adoption of 28 C.F.R. §§ 570.20 and 570.21 is not an invalid exercise of the rulemaking authority of the Bureau of Prisons. The petition for a writ of habeas corpus therefore does not state a claim upon which relief can be granted, and therefore will be dismissed.
III. Conclusion
For the foregoing reasons, the motion of respondent David L. Winn to dismiss for failure to state a claim is GRANTED.