The opinion of the court was delivered by: CHARLES BREYER, District Judge
Now pending before the Court is petitioner's consolidated
motion for a preliminary injunction and petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner seeks to
enjoin the Federal Bureau of Prisons from terminating its Shock
Incarceration Program. Petitioner is currently incarcerated at
FCI Dublin, a prison facility located within this district. After
carefully considering the parties' briefs, and with the benefit
of extended oral argument, the Court hereby DENIES the petition.
On November 29, 1990, Congress passed the Crime Control Act,
which included a provision authorizing the Federal Bureau of
Prisons ("BOP") to create the Shock Incarceration Program, also
known as the Intensive Confinement Center Program or the "boot
camp" program (hereinafter "the Program"). 18 U.S.C. § 4046. On
November 1, 1991, the United States Sentencing Commission
promulgated the Shock Incarceration Program Sentencing Guideline,
which gives the sentencing court the authority to recommend that BOP place a defendant in a boot camp pursuant to the
statutes authorizing judicial recommendations. U.S.S.G. 5F1.7.
For the first five years of the Program's existence, BOP issued
Operations Memoranda that oversaw implementation of the Program.
In 1996, BOP promulgated rules governing the Program that were
subject to notice-and-comment under the APA. 61 Fed. Reg. 18658
(Apr. 26, 1996), codified as 28 C.F.R. § 524. BOP also issued a
program statement overseeing the Program in 1999. See Program
Statement 5390.08. BOP rules provide for a substantial reduction
in actual prison time for those who successfully complete the
Program, including up to a six month reduction in
As part of the original statute, Congress authorized "the
appropriation of such sums as are necessary to carry out the
legislation for fiscal year 1990 and thereafter," but the Program
was always funded out of Congress's lump-sum appropriations to
the BOP for all of the agency's expenses and salaries. In 2004,
BOP faced a deficit of $150 million. Resp. Opp. at *14. BOP
contends that the boot camp program costs an additional $1.2
million. See Message to All Staff from Harley G. Lappin,
January 5, 2005 (Pet. Exh. L). On January 5, 2005, the Director
of BOP notified his staff that the Program would be terminated.
On January 14, 2005, the Director sent a letter to all federal
judges, chief U.S. probation officers, federal public defender's
and United States attorneys, formally informing them of the
termination of the Program "effective immediately" because of the
Program's limited success and its high cost. See Pet. Exh. M.
The letter indicated that those inmates who were currently in the
Program were permitted to complete it, but no new inmates were
allowed to commence the Program. The last class at FPC Bryan,
Texas, the only facility that provided a boot camp program for
women, completed its six-month program on June 28, 2005. Def.
Opp. at *6. I. Facts
Petitioner is a 22-year-old first offender who, on May 5, 2003,
pled guilty in federal court in the District of Oregon to one
count of possession of 50 grams or more of methamphetamine with
the intent to distribute under 21 U.S.C. § 841(a). Pet. Exh. I.
Petitioner requested that the court recommend her for the boot
camp program, which the court did on October 16, 2003, in
addition sentencing her to 37 months in federal prison. One month
later, the Regional Director of BOP informed the sentencing court
that a 37-month sentence precluded petitioner from direct
commitment to the boot camp program; instead, she would be
eligible for transfer when 24 months remained on her sentence.
Pet. Exh. J. On September 10, 2004, the district court amended
its judgment and re-sentenced petitioner to 30 months
imprisonment, which, assuming she fit other relevant criteria,
would have made her eligible for direct commitment to the
Program. See BOP Program Statement § 524.31, Pl. Exh. H at *4.
("Inmates serving sentences of more than 12 but not more than 30
months are ordinarily placed in ICCs at initial designation.").
Nevertheless, petitioner was designated to FCI Dublin, where
there was never a boot camp program. Petitioner voluntarily
surrendered to Dublin on November 5, 2004. Shortly after her
surrender, it became clear to petitioner that BOP incorrectly
believed that her sentence was still for 37 months. BOP
subsequently corrected petitioner's records to reflect the
amended judgment and sentence. The parties dispute whether she
was told by her case manager that she was eligible for a
transfer to boot camp in Bryan, Texas, or that she might be
eligible. Nevertheless, petitioner was informed less than two
weeks later by her case manager that the boot camp program was
being cancelled by BOP and that it would not be accepting any
more referrals. Shortly after May 2, petitioner was offered the
possibility of enrolling in a state-run boot camp, with
assurances that she would receive the same benefits as under the
federal program. The parties dispute what followed with regard to
the state run boot camp, but after a preliminary hearing in this
matter on November 17, petitioner was accepted into the Wisconsin
boot camp program beginning on or about December 20, 2005. BOP
also agreed to transfer her to a community corrections center
near her home following completion of the Wisconsin boot camp for 30 days before
releasing her on or about July 20, 2006.
In April 2005, petitioner filed a habeas petition under
28 U.S.C. § 2255 to the sentencing judge in Oregon. On July 14,
2005, district judge Anna Brown dismissed the petition for lack
of jurisdiction because petitioner was challenging the execution
not the imposition of her sentence. Pet. Exh. A. On August
23, petitioner filed a habeas petition under 28 U.S.C. § 2241 in
this court because she is incarcerated in the northern district
and is challenging the proper execution of her sentence. On
September 26, 2005, petitioner filed a motion for a preliminary
injunction. The parties agreed to consolidate briefing on the
motion for preliminary injunction and the petition for writ of
habeas corpus. Despite her enrollment in the Wisconsin boot camp,
petitioner's claims are not moot because the harm she alleges
cannot be fully remedied: If she prevails on her claim, her time
in federal prison may have exceeded what she would have received
if she directly entered the federal boot camp program under BOP's
regulations. The Court held an extended oral argument on December
Petitioner argues that she is likely to succeed on the merits
because BOP 1) exceeded its statutory authority; 2) failed to
adhere to the notice-and-comment requirements under the APA for
substantive rule changes; 3) made an unreasonable and arbitrary
decision to terminate the Program which deserves no deference;
and 4) violated the United States Constitution under the Ex Post
Facto Clause, the separation of powers doctrine, and
impermissibly applied its decision retroactively. Petitioner
relies heavily on a district court case in Massachusetts where
the court determined that BOP's decision to terminate the Program
was invalid because it violated the notice-and-comment
requirement under the Administrative Procedure Act and the Ex
Post Facto Clause. See Castellini v. Lappin,
365 F.Supp.2d 197 (D. Mass. 2005) (Saris, J.). The case was eventually
dismissed on other grounds. See Barnes v. Lappin, 2005 WL
2456229 at *2 (M.D. Fla Oct. 5, 2005). Respondents argue that petitioner cannot succeed on the merits
because 1) petitioner lacks standing and failed to exhaust her
administrative remedies; 2) BOP properly used its discretion
under its statutory authorization when it terminated the Program;
3) BOP adhered to all of the relevant and applicable
administrative laws but was not required to publish the rule for
notice-and-comment; 4) BOP's decision did not implicate the Ex
Post Facto Clause or the separation of powers doctrine of the
U.S. Constitution; and 5) petitioner did not have settled
expectations necessary to invoke the retroactivity doctrine.
Respondents rely heavily on dicta in a district court case in
Oregon where the court rejected a defendant's arguments that
BOP's decision violated separation of powers, the Ex Post Facto
Clause, the notice-and-comment requirement and arbitrary and
capricious standard under the ADA, and that it exceeded statutory
authority. United States v. McLean, 2005 WL 2371990 at *5 (D.
Or. Sep. 27, 2005) (Aiken, J.) (granting defendant's motion on
due process grounds not at issue here, holding that the court
detrimentally relied on objectively unreliable information the
existence of the boot camp program that was material to her
sentence).*fn2 This case is a matter of first impression in
this district and this circuit.
To satisfy Article III's standing requirements, a plaintiff
must show (1) it has suffered an "injury in fact" that is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable
to the challenged action of the defendant; and (3) it is likely,
as opposed to merely speculative, that the injury will be
redressed by a favorable decision. Rivas v. Rail Delivery
Service, Inc., 423 F.3d 1079, 1082 n. 1 (9th Cir. 2005) (citing
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167, 180-181 (2000). A plaintiff demonstrates injury in fact
by pointing to "some threatened or actual injury resulting from the putatively illegal action."
Id. at 1082-1083 (internal citations omitted).
Respondents contend that petitioner suffered no injury in fact
because she was never accepted into the boot camp program before
it was terminated. Her only cognizable interest, according to
respondents, is to be considered for the Program at the
discretion of BOP; there are no guarantees that any inmate will
be accepted into the Program, even inmates who benefit from
initial designation into prisons with the Program. As a result, a
favorable decision will not redress the problem, because all
petitioner would be entitled to is an evaluation as to whether
she could be admitted to the Program. Most important, even if she
were admitted into the Program, respondents assert, the benefits
would not be conferred until she completed the Program.
Therefore, she would only have standing upon completion of the
boot camp program, and she has not (and cannot) show she would
have completed the Program and therefore does not have standing.
Finally, respondents argue that no inmates were admitted to the
Program after July 22, 2005, so even if petitioner was directly
designated to a facility with the Program after receiving her
amended sentence in September 2005, she would not have been
accepted into the Program before it was terminated.
Petitioner responds with three arguments to the contrary.
First, she contends that had BOP followed their proper
procedures, petitioner would have reported directly to the boot
camp facility in Texas prior to BOP's decision to refuse any more
referrals. Petitioner contends that respondents' argument is
circular: In effect, respondents argue that she cannot have
standing because she was never accepted (or completed) the
Program, but the cancellation of the Program was a "but for"
cause of her failure to be accepted. Similarly, petitioner
contends that if she should have been directly designated to the
Program, then it is immaterial whether her sentence and surrender
occurred after the last inmates were accepted into the Program.
In fact, petitioner argues, that is precisely why she has
standing: Petitioner's injury derives from the termination of the
Program, not whether she was too late to be admitted to the
now-terminated Program. Second, petitioner argues that she, her lawyer and the judge
relied on this recommendation (to her ultimate detriment) when
the sentencing occurred, thereby bestowing a "settled
expectation" of participating in the boot camp program upon being
recommended for it. Even assuming arguendo that she was not
guaranteed placement in a boot camp program, the judge's
recommendation to a boot camp program and the possibility of
participating in the Program factored into her decision to plead
guilty. When factors that she relied on changed, petitioner
argues that she therefore has suffered a cognizable injury.
Finally, she also alleges that her case manager told her she was
eligible for the Program before correcting herself five days
later when she learned that no more referrals were available.
Respondents contend that she was told she might be eligible.
One court in the southern district of Texas has addressed the
identical issue on two occasions and both times determined that
the petitioner did not have standing. See Soto v. Federal
Bureau of Prisons, 2005 WL 2921641 (S.D. Tex. Nov. 3, 2005);
Rivas v. Federal Bureau of Prisons, 2005 WL 3054577 (S.D. Tex,
Nov. 14, 2005). Both opinions are essentially identical, and in
both, the court held that the petitioner did not have standing
because there was no showing that she would have been eligible
for, or benefitted from, the federal boot camp, and therefore her
injury was speculative, not concrete. Although the court noted
the petitioners' failure to allege or show a number of
preliminary requirements for admission into the Program, the crux
of the holding is that the petitioners would not have standing
until they completed the Program.
The Court respectfully disagrees with the Texas court's
conclusion that standing can only be conferred upon completion
of the Program. Notwithstanding the fact that such a conclusion
would bar any claim opposing BOP's decision,*fn3 that is not
the law in the Ninth Circuit. The Ninth Circuit has held that
"[a] prisoner's right to consideration for early release is a
valuable one that we have not hesitated to protect." Cort v.
Crabtree, 113 F.3d at 1085 (emphasis in original). In Cort,
the court held that where the only remaining program condition to be completed is entirely within a prisoner's control
i.e., completion of the Program BOP cannot deny that the
right to the sentence reduction has been properly conferred.
Petitioner's eligibility for the Program is no longer disputed
since she has already been accepted into a similar, state-run
boot camp in Wisconsin. As a result, BOP's ...