Goldings v. Winn, 03-2633.

• Decision Date: 09 September 2004
• Docket Number: No. 03-2633.,03-2633.
• Citation: 383 F.3d 17
• Parties: Morris M. GOLDINGS, Plaintiff, Appellant, v. David L. WINN and John Ashcroft, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

383 F.3d 17

Morris M. GOLDINGS, Plaintiff, Appellant, v. David L. WINN and John Ashcroft, Defendants, Appellees.

No. 03-2633.

United States Court of Appeals, First Circuit.

Heard May 7, 2004.

Decided September 9, 2004.

Appeal from the United States District Court for the District of Massachusetts, William G. Young, Chief Judge.

Morris M. Goldings on brief pro se.

George B. Henderson, II, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellees.

Charles W. Rankin and Peter Goldberger for National Association of Criminal Defense Lawyers, Criminal Justice Act Board, and Families Against Mandatory Minimums Foundation, amici curiae.

Before LIPEZ and HOWARD, Circuit Judges, and LISI,^* District Judge.

LIPEZ, Circuit Judge.

Morris Goldings, an inmate at the Federal Medical Center Devens, in Ayer, Massachusetts, brought this civil action against the Warden of FMC Devens, David Winn, and Attorney General John Ashcroft, challenging a change in policy by the Bureau of Prisons ("BOP") that limited his eligibility for placement in a community corrections center ("CCC") to the last ten percent of his sentence. He sought declaratory and injunctive relief enjoining the defendants from applying the new policy to him. The defendants moved to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, and Goldings appealed.

The policy change that is the subject of this lawsuit was required by a December 13, 2002 Memorandum Opinion from the Department of Justice Office of Legal Counsel, which declared unlawful the BOP's prior practice of placing federal prisoners in community confinement to serve all or part of their sentences. Goldings argues that the BOP's policy is based on an erroneous interpretation of two statutory provisions of the Sentencing Reform Act of 1984, 18 U.S.C. § § 3621(b) and 3624(c). According to this interpretation, these two provisions limit the BOP's discretion to place prisoners in CCCs to the lesser of the last six months or ten percent of their terms of imprisonment. Although the change in policy has generated a flood of lawsuits in the federal district courts, no court of appeals has yet spoken on the validity of the BOP's new policy. We do so here and conclude that the new policy is contrary to the plain meaning of 18 U.S.C. § 3621(b).

I.

On July 17, 2002, Goldings pled guilty in the United States District Court for the District of Massachusetts to three counts of tax fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1956. He was sentenced to a thirty-six month term of imprisonment. On August 28, 2003, Goldings reported to Federal Medical Center Devens, the correctional facility designated by the Bureau of Prisons, to commence his sentence.

When Goldings entered federal custody, the BOP considered prisoners for placement in community correction centers near the end of their sentences, for up to six months, pursuant to a longstanding practice.¹ In addition, the BOP had a policy of placing in CCCs some low-risk, non-violent federal offenders who had been sentenced to short periods of imprisonment, including for periods of more than six months, particularly if the sentencing court so recommended.

On December 13, 2002, about three-and-a-half months after Goldings began serving his sentence, the Office of Legal Counsel of the United States Department of Justice (OLC) forwarded to Deputy Attorney General Larry D. Thompson an eight-page memorandum that characterized as "unlawful" the BOP's decades-long practice of placing certain offenders in CCCs to serve all or part of their sentences. It stated, in part:

Your office has informed us that when a federal offender whom the [BOP] deems to be low-risk and nonviolent receives a short sentence of imprisonment, BOP often places that offender in a community corrections center, halfway house, or other form of "community confinement," rather than in prison. Your office has asked us to advise you whether BOP has general authority, either upon the recommendation of the sentencing judge or otherwise, to place such an offender directly in community confinement at the outset of his sentence or to transfer him from prison to community confinement during the course of his sentence.

We conclude below that the BOP has no such general authority. As we explain, BOP's statutory authority to implement sentences of imprisonment must be construed, wherever possible, to comport with the legal requirements that govern the federal courts' sentencing order. Community confinement does not constitute imprisonment for purposes of a sentencing order, and BOP lacks clear general statutory authority to place in community confinement an offender who has been sentenced to a term of imprisonment. BOP's practice is therefore unlawful.

The OLC Memorandum also specifically concluded that the BOP lacked statutory authority to transfer inmates to CCCs for more than ten percent of their sentences, explaining that "[t]he authority conferred under section 3624(c) to transfer a prisoner to a non-prison site is clearly limited to a period `not to exceed six months, of the last 10 per centum of the time to be served,' and we see no basis for disregarding this time limitation." (internal citation omitted).

On December 16, 2002, the Deputy Attorney General adopted the OLC Memorandum and forwarded it to the Director of the BOP, with a memorandum that directed the BOP to "take all steps necessary to ensure that its sentencing decisions are in full compliance with the governing law" and to transfer to prison facilities all offenders residing in CCCs who had more than 150 days remaining of their terms of imprisonment. The memorandum reiterated that

while BOP does have limited statutory authority in 18 U.S.C. § 3624(c) to transfer an offender to a CCC prior to his release so as to "afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community," there are firm restrictions on such transfers. Specifically, the transfer may not exceed the lesser of (i) the last ten percent of the sentence imposed on the offender, i.e., the period of time in which the offender was committed to the custody of the BOP, or (ii) six months. The OLC opinion concludes that there are no bases for disregarding the time limitations.

Id. at 2 (emphasis in the original).

On December 20, 2002, the Assistant Directors for the General Counsel and Chief Programs Division of the BOP issued a memorandum that directed all BOP officers to implement immediately a "revised procedure" based on the OLC Memorandum. In accordance with that directive, Warden Winn informed the inmates of the FMC Devens Camp that because of the OLC Memorandum, the BOP had changed its procedures for designating inmates to CCCs. He explained that all future pre-release CCC designations would be limited to the last ten percent of an inmate's prison term.

After exhausting his administrative remedies, Goldings, who was an attorney prior to his conviction, filed this action pro se in the United States District Court for the District of Massachusetts. His complaint alleged that under the BOP policy in effect at the time of his sentencing, he would have been eligible for transfer to a CCC as early as October 7, 2004, six months before his statutory release date. In contrast, under the new policy, his transfer is not possible until January 7, 2005, when he will have only ten percent of his sentence left to serve. The complaint alleged that the new BOP procedure was incorrect as a matter of statutory interpretation, was established in violation of the notice and comment requirements of the Administrative Procedure Act (APA), and violated Goldings' rights under the Ex Post Facto and Due Process Clauses of the United States Constitution. Goldings sought a declaration that § 3621(b) authorizes the BOP to transfer him to a CCC or halfway house for more than the last ten percent of his sentence, if appropriate, under the BOP's pre-December 2002 policy, and an injunction enjoining the defendants from limiting his eligibility for placement in a CCC to the last ten percent of his sentence based on the OLC Memorandum.

The defendants moved to dismiss Goldings' complaint pursuant to Fed.R.Civ.P. 12(b)(6); on October 23, 2003, the district court granted the motion. In a brief rescript, the court stated that it agreed with the reasons expressed by two other district courts in the District of Massachusetts in similar cases; in particular, the court cited the conclusion that "the BOP's revised policy merely corrected an erroneous interpretation of 18 U.S.C. § 3624(c)." The district court distinguished two other cases decided in the district which "criticized application of the BOP policy" on the ground that those cases "involved assignments to a CCC at the beginning of a defendant's sentence ... [and] were governed by 18 U.S.C. § § 3621(b) and 3625." By contrast, "Goldings' case ... involves transfer to a CCC at the end of his sentence, and is accordingly governed by 18 U.S.C. § 3624(c)." Hence, the court found no constitutional or statutory violation and rejected Goldings' alternative arguments concerning equitable estoppel and reasonable expectations. This appeal followed.²

II.

Our review of the district court's decision granting the defendants' Rule 12(b)(6) motion to dismiss is de novo. LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir.1998). At issue in this case is the validity of the defendants' interpretation of 18 U.S.C. § 3621(b) and § 3624(c), the statutory provisions that govern the BOP's authority to decide where a federal offender must serve all or part of his or her sentence.³ In particular, we must consider whether the BOP has authority under the statute to transfer a federal prisoner to a CCC prior to the lesser of the last six months or ten...