internal scrutiny; it is the result, if anything, of on-the-job judgments reached in the midst of daily decisionmaking.
Second, the decision does not appear to have been informed by any particular agency expertise. Unlike the situation in Procunier v. Martinez, supra, which involved the daily administration of the prisons, the question of determining the appropriate territorial limits for emergency furloughs does not call for the use of any special expertise. It is a matter of law and of congressional intent.
Third, and perhaps most important, the agency's interpretation directly limits the clear intent of the statute. The legislative history and the words of the statute itself make evident Congress' desire to further prisoners' establishment of "(constructive) family relationships." See, e.g., Sen.Rep. 418, 93rd Cong., 1st Sess., reprinted in (1973) U.S.Code Cong. & Admin.News 3017, 3018. The only limits are that the Attorney General have reason to believe that the prisoner will honor his trust and that the visit serve the purposes for which the program was established. Yet the Bureau's approach runs counter to this purpose without the exercise of any agency expertise or discretion in every case where the purposes of the program could only be served by a furlough that would take the prisoner into Canada.
Turning from the agency's restrictive view of its own authority, there is another difficulty with the Bureau of Prisons' position in this case. Much of the defendants' opposition centers on the argument that furloughs to Canada would be contrary to the Attorney General's responsibility to maintain "custody" over prisoners. Yet in an analogous area parole this same situation seemingly causes no concern.
The parole statute states explicitly that "(a) parolee shall remain in the legal custody and under the control of the Attorney General, until the expiration of the maximum term or terms for which such parolee was sentenced." 18 U.S.C. § 4210(a) (1976). The wording, if anything, is even more stringent than the admonition in section 4082 that prisoners "shall be committed ... to the custody of the Attorney General." Yet under 28 C.F.R. § 2.41(b) (1980) it is possible for a parolee to obtain approval for "travel outside the contiguous forty-eight states" where he has demonstrated "a substantial need for such travel." Although it is quite likely that a parolee's request for foreign travel would be treated differently than a request from a prisoner still serving a term of incarceration, that is a matter addressed to the Bureau's informed exercise of its discretion and not to the separate issue of whether it has the basic authority to permit travel beyond the contiguous forty-eight states. In light of the policies with regard to parole, the Bureau of Prisons goes too far in arguing that subsection 4082(a) forbids an interpretation of subsection 4082(c) that would permit furloughs to Canada.
In sum, the Court finds that the Bureau of Prisons is incorrect in its belief that 18 U.S.C. § 4082 denies it the authority to grant a furlough to Canada. Such an interpretation is not evident from the statute nor from the legislative history, and that approach diminishes the effectiveness of the legislation. If Congress had intended such a limit, it would have said so.
This does not mean, however, that the Bureau of Prisons must exercise its discretion in such a manner as to allow every prisoner who wants to go to Canada that chance. The authority in section 4082 is clearly permissive, not mandatory, and the Bureau retains discretion both to decide whether a particular request should be granted and to establish the conditions for each furlough that would satisfy the Bureau's legitimate custodial needs. In the case before the Court, the Bureau has indicated that Merling merits a furlough, but there has not been an opportunity to determine the conditions that should be imposed.
For the foregoing reasons, Merling's motion for summary judgment will be granted to the extent that the Court will issue a declaratory judgment that 18 U.S.C. § 4082(c) (1976) does not forbid the Bureau of Prisons from exercising its discretion to grant a furlough request where the destination is in Canada, and the Court will enjoin the Bureau from denying the furlough request solely on that basis. The Court also will order the Bureau to determine, within five days, the terms under which a furlough is appropriate in this case.