Castellini v. Lappin

• Decision Date: 12 April 2005
• Docket Number: No. CIV.A.05-10220-PBS.,CIV.A.05-10220-PBS.
• Citation: 365 F.Supp.2d 197
• Parties: Richard CASTELLINI, Plaintiff, v. Harley G. LAPPIN (in his official capacity as Director of the Bureau of Prisons), Defendant,
• Court: U.S. District Court — District of Massachusetts

Page 197

365 F.Supp.2d 197

Richard CASTELLINI, Plaintiff, v. Harley G. LAPPIN (in his official capacity as Director of the Bureau of Prisons), Defendant,

No. CIV.A.05-10220-PBS.

United States District Court, D. Massachusetts.

April 12, 2005.

Sheryl A. Koval, Goodwin Procter LLP, Boston, MA, for Richard Castellini, Plaintiff.

James Rehnquist, David S. Schumacher, Goodwin Procter LLP, Boston, MA, for Richard Castellini, Plaintiff.

MEMORANDUM AND ORDER

SARIS, District Judge.

I. INTRODUCTION

Plaintiff Richard Castellini,¹ who was sentenced to twenty-one months of incarceration with a recommendation that his sentence be served in the federal boot camp program, moves for a temporary restraining order and/or preliminary injunction to prevent defendant Harley Lappin, Director of the federal Bureau of Prisons ("BOP"), from terminating the boot camp program. Plaintiff argues that he is likely to succeed on the merits because the BOP's termination of the program exceeded the BOP's authority, violated the notice-and-comment requirements for agency rulemaking under the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, and violated the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3. After hearing, plaintiff's motion is ALLOWED on the ground that plaintiff is likely to succeed on his claim that the BOP failed to comply with the APA and violated the Ex Post Facto Clause.

II. BACKGROUND

Congress enabled the creation of the federal boot camp program, also known as the Shock Incarceration Program ("SIP") or Intensive Confinement Center ("ICC") program, in the Crime Control Act of 1990. Pub.L. No. 101-647, § 3001, 104 Stat. 4789 (codified at 18 U.S.C. § 4046). The statute provides:

(a) The Bureau of Prisons may place in a shock incarceration program any person who is sentenced to a term of imprisonment of more than 12, but not more than 30, months, if such person consents to that placement.

(b) For such initial portion of the term of imprisonment as the Bureau of Prisons may determine, not to exceed 6 months, an inmate in the shock incarceration program shall be required to —

(1) adhere to a highly regimented schedule that provides the strict discipline, physical training, hard labor, drill,

and ceremony characteristic of military basic training; and

(2) participate in appropriate job training and educational programs (including literacy programs) and drug, alcohol, and other counseling programs.

(c) An inmate who in the judgment of the Director of the Bureau of Prisons has successfully completed the required period of shock incarceration shall remain in the custody of the Bureau for such period (not to exceed the remainder of the prison term otherwise required by law to be served by that inmate), and under such conditions, as the Bureau deems appropriate.

18 U.S.C. § 4046. At the time of the statute's enactment, "the Bureau of Prisons [did] not have the legal authority necessary to operate a shock incarceration program." H.R.Rep. No. 101-681(I) (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6557, 6558.

While the BOP could set up a boot camp prison, it has no authority to release an inmate before that inmate's term would otherwise expire. A shock incarceration program is based upon an inmate serving a shorter, but more arduous, term. Legislation is necessary, therefore, if there is to be a Federal shock incarceration program.

Id. The purpose of the legislation was "to enable the Federal Government" and, more specifically, to "authorize[] the Bureau of Prisons to operate a shock incarceration program." Id.; see United States v. Padilla-Galarza, 351 F.3d 594, 599 (1st Cir.2003) ("The boot camp program ... is authorized by statute, 18 U.S.C. § 4046 ...."). Congress also authorized funding for the program "for fiscal year 1990 and each fiscal year thereafter," § 3002, 104 Stat. 4789, although Congress has not appropriated funds specifically for the boot camp program, see, e.g., Consolidated Appropriations Act, 2004, Pub.L. 108-199, 118 Stat. 3, 53-55 (appropriations for the Federal Prison System).²

The BOP enacted regulations to establish the boot camp program. See Intensive Confinement Center Program, 61 Fed.Reg. 18,658 (Apr. 26, 1996); Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 62 Fed.Reg. 53,690 (Oct. 15, 1997) (both codified at 28 C.F.R. §§ 524.30-.33 (2004)). These regulations include "eligibility for consideration" requirements, 28 C.F.R. § 524.31(a), and state that placement in the program "is to be made by Bureau staff in accordance with sound correctional judgment and the availability of Bureau resources," 28 C.F.R. § 524.31(b).

After a two-week trial in this Court (Tauro, J.) in July 2002, plaintiff was convicted of money laundering and conspiracy to launder money. (Pl.'s V. Compl. ¶ 16.) At a sentencing hearing on August 12, 2003, the Court sentenced plaintiff to twenty-one months of imprisonment. (Id. ¶¶ 17, 18.) The Court stayed the sentence pending appeal to the First Circuit, which affirmed plaintiff's conviction and sentence on December 15, 2004. (Id. ¶ 19.) On January 6, 2005, this Court recommended that plaintiff, who met the eligibility qualifications, be allowed to self-report to the ICC at USP-Lewisburg on February 14, 2005. (Id. ¶¶ 18-21.) According to plaintiff, if he successfully completed the boot camp program and subsequent community confinement term, his sentence would be reduced by five months based on the program's provision for sentence reduction. See 28 C.F.R. § 524.32(d). (Pl.'s V. Compl. ¶ 18.)

On January 5, 2005, however, defendant had announced to BOP staff that the BOP was terminating the boot camp program due to budgetary pressures. Defendant stated that "ICC programs are exceedingly costly to maintain" and that eliminating the program would save an estimated $1.2 million annually. (Memo from Lappin to All Staff of 1/5/05 (attach. to Def.'s Opp.).) In a memorandum to federal judges dated January 14, 2005, defendant stated that the boot camp program would be terminated "effective immediately" and that individuals enrolled in the program would be allowed to complete it but that no new inmates would be accepted into the program. (Memo from Lappin to Fed. Judges of 1/14/05 (attach. to Def.'s Opp.).) Plaintiff's report date has been postponed until mid-April.

III. ANALYSIS

"[T]he test for a preliminary injunction has four factors: 1) a likelihood of success on the merits, 2) irreparable harm to the plaintiff should preliminary relief not be granted, 3) whether the harm to the defendant from granting the preliminary relief exceeds the harm to the plaintiff from denying it, and 4) the effect of the preliminary injunction on the public interest." Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 75 (1st Cir.2005). However, "[t]he `sine qua non' of a preliminary injunction analysis is whether the plaintiff is likely to succeed on the merits of its claim." SEC v. Fife, 311 F.3d 1, 8 (1st Cir.2002); see Bl(a)ck Tea Soc'y v. City Of Boston, 378 F.3d 8, 15 (1st Cir.2004) ("[L]ikelihood of success is an essential prerequisite for the issuance of a preliminary injunction.").

A. Likelihood of Success

1. BOP Authority

Plaintiff argues that the BOP does not have the power to terminate the boot camp program and that the termination is ultra vires. "An agency garners its authority to act from a congressional grant of such authority in the agency's enabling statute." United States v. Miami Univ., 294 F.3d 797, 807 (6th Cir.2002); see also Yeboah v. United States Dep't of Justice, 345 F.3d 216, 221 (3d Cir.2003) ("The terms of the enabling statute establish the scope of agency authority...."). Determining the scope of the BOP's authority over the boot camp program, therefore, begins with the interpretation of its enabling statute. Goldings v. Winn, 383 F.3d 17, 21-22 (1st Cir.2004) ("As in any case of statutory construction, ... analysis begins with the language of the statute.") (quoting Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999)) (internal quotation omitted).

Section 4046 gives the BOP discretion over the operation of the boot camp program. The statute states that the BOP "may" place eligible prisoners in the program. § 4046(a); see Jama v. Immigration & Customs Enforcement, ___ U.S. ___, ___, 125 S.Ct. 694, 703, 160 L.Ed.2d 708 (2005) ("The word `may' customarily connotes discretion."); see also Padilla-Galarza, 351 F.3d at 599 ("The Bureau of Prisons decides who may participate [in the program] but a recommendation by the judge is given weight."); Gissendanner v. Menifee, 975 F.Supp. 249, 251 (W.D.N.Y.1997) ("[C]onsideration for the `shock incarceration boot camp' and its availability to any particular prisoner is within the BOP's sole discretion."). The statute dictates the basic participation requirements of the boot camp program, see § 4046(b) ("an inmate in the shock incarceration program shall be required to"), but otherwise contains no mandates to the BOP as to the operation of the program, its budget, or capacity. Cf. 18 U.S.C. § 3624(d)(1) ("[T]he Bureau of Prisons shall furnish [a] prisoner with ... suitable clothing" upon release.); § 4042(b) (BOP "shall" provide notice of prisoner release). This grant of discretion comports with the purpose of the legislation to enable the BOP to operate the boot camp program. H.R.Rep. No. 101-681(I), reprinted in 1990 U.S.C.C.A.N. 6472, 6558; see also Rolland v. Romney, 318 F.3d 42, 48 (1st Cir.2003) ("[T]he plain meaning of the statutory language, as derived from the whole of the statute, including its overall policy and purpose, controls.").

Plaintiff argues that the BOP's authority over operation of the program does not include the authority to terminate it. To say that the BOP "may assign" the plaintiff to the boot camp program means that the BOP has the discretion to assign inmates to the program, plaintiff argues, not the...