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December 19, 2005.

SCHELIA A. CLARK et al., Respondents.

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 sentence.*fn1

  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.

  II. Procedural History

  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 1, 2005.


  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.

  I. Threshold Matters

  A. Standing

  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 ...

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