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April 22, 2004.

JAMES SCOTT, Petitioner-Plaintiff,

The opinion of the court was delivered by: JOSEPH IRENAS, District Judge

This matter having come before the Court on the Motion for Injunctive Relief of the Petitioner-Plaintiff, James Scott, the Court, having considered the briefs and oral arguments of the parties, for the reasons set forth in an oral opinion delivered in open court on April 20, 2004, which is incorporated herein by reference, and it appearing that:

  1. James Scott ("Petitioner") seeks to compel the federal Bureau of Prisons ("BOP"), Harley G. Lappin*fn1 and C.J. DeRosa*fn2 ("Respondents", collectively) to immediately make a determination as to his eligibility for prerelease designation to a Community Corrections Center ("CCC") pursuant to the BOP's pre-December 20, 2002 policies, as embodied in BOP Program Statement 7310,04, dated December 16, 1998 ("BOP PS").*fn3 Respondents have not made this determination because they claim that a new BOP policy, effective as of December 20, 2002, prohibits them from doing so.

  2. Respondents notified Petitioner that as of December 20, 2002, and contrary to the BOP's long standing practice,*fn4 prerelease designations to CCCs were now limited to ten percent of an inmate's prison term, not to exceed six months. This change in policy was made to comply with a December 13, 2002, Memorandum Opinion from the Justice Department's Office of Legal Counsel ("OLC Memo"), which claimed that several BOP practices regarding CCC placements were unlawful.*fn5

  3. However, the OLC Memo makes two misinterpretations of law: (1) it. incorrectly reasons that a CCC can never be considered a "penal or correctional facility" as that, term is used in 18 U.S.C. § 3621; and (2) it incorrectly views 18 U.S.C. § 3624 as a limitation on 18 U.S.C. § 3621.*fn6 Because Petitioner has shown a likelihood of success in his argument that the OLC Memo is incorrect to the extent that it interprets § 3624(c) as applying its 10% limitation to prerelease placement in a CCC which would otherwise be a "penal or correctional facility" under § 3621(b), preliminary relief will be granted as provided in this Order.

  4. Petitioner is not challenging the length of his sentence, nor has the BOP acted in a way to lengthen the period of his custody. Only the level of custody is at issue. Therefore, a habeas corpus petition under 28 U.S.C. § 2241 is not the appropriate remedy. Under the practices in effect before the OLC Memo, Petitioner would still be "in custody" even if the level of that, custody did not amount to placement in a "penal or correctional facility." Compare Sandin v. Conner, 515 U.S, 472 (1995); Asquith v. Volunteers of America, 186 F.3d 407 (3d Cir. 1999). The Court concludes that the relevant statutes give the BOP a great deal of discretion in determining how a prisoner's custody is to be implemented. The OLC Memo unlawfully restricts that discretion, particularly under § 3621(b), and in doing so denies due process of law to a prisoner who may benefit from such discretion.

  Based on the foregoing,
IT IS, on this 22nd day of April, 2004,
  1. Petitioner's action is hereby converted from a habeas petition to a 42 U.S.C. § 1983 action. Petitioner is responsible for the $150.00 filing fee; 2. Petitioner's Motion for Injunctive Relief is GRANTED, but only to the extent hereafter provided;

  3. The Federal Bureau of Prisons, no later than May 14, 2004, will complete its prerelease planning for the placement of Petitioner in accordance with BOP Program Statement 73.10.04, with the following proviso: the 10% limitation in 5 3624(c) shall not apply to any portion of a community placement which is consistent with the "Community Corrections Component" as set forth in 7.a.(1) of BOP PS, it being the ruling of the Court that such placemen!: would be in a "penal or correctional facility" as provided by § 3621(b); pending final resolution of this case, any other components of the prerelease plan, such as the "Prerelease Component" (7.a.(2) of BOP PS) or home confinement, shall be subject to the 10% limitation. The discretion of the BOP shall not be limited by any provision of the OLC Memo inconsistent, with this Order; and

  4. Should, the BOP fail to reconsider Petitioner's prerelease planning in accordance with this Order, Petitioner may renew his application before this Court provided such application is filed and served no later than May 18, 2004; any responsive papers shall be served and filed no later than ...

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