3. Recent Administrative Developments
During the motions hearing, Defendants argued, for the first time,*fn12
that the BOP did in fact reevaluate Plaintiff's placement and
determined, in its discretion, that he should serve the first five months
of his sentence in a prison facility.*fn13 They maintain that Plaintiff
has not suffered any injury because BOP has effectively applied its
former discretionary policy, and, in so doing, determined that the
original placement in a CCC was not appropriate.
It is passing strange that there is no documentary evidence —
"paper trail" in bureaucratic parlance — that the BOP specifically
reconsidered the merits of Plaintiff's placement including the nature of
his crime, his risk to society, his lack of prior criminal history, and
his family and business obligations. In other words, the Court does not
know whether this reconsideration was the same as that given to all
offenders affected by the new policy — namely a determination
that, because Plaintiff is a Zone D offender residing in a CCC, who has
more than 150 days remaining on the imprisonment component of his
sentence, he must be transferred to a prison facility.
Assuming, arguendo, that the BOP did specifically reconsider
Ashkenazi's placement, it does not contend that this reconsideration
occurred before the Deputy Attorney General issued the December 16, 2002
memorandum advising the BOP that it could no longer employ its discretion
to place Zone C and D offenders in CCCs. Thus, in "reconsidering"
Plaintiff's placement after December 16, 2002, the BOP had no discretion
to exercise and was required by the new Department of Justice policy to
conclude that Plaintiff should be placed in a prison facility. To do
otherwise, would have violated the Attorney General's explicit
prohibition on placing Zone D offenders in CCCs.
However, Plaintiff accepted the plea bargain with the explicit
understanding that the BOP would exercise its discretion and that there
was a possibility he would serve his sentence in a CCC. Because any
reconsideration of his placement after the December 16 memorandum
precludes the BOP from exercising this discretion, Plaintiff could not, as
a matter of law, receive the consideration he bargained for. In short,
the loss of "eligibility" under application of the new policy was the
same loss of "eligibility" which the Supreme Court found unconstitutional
in Lynce and Weaver.
Finally, after the Motion for a Preliminary Injunction was fully
briefed, Defendants argued, again for the first time, that the BOP's
initial designation of Plaintiff to
a CCC instead of a prison facility
was the result of an administrative error. They rely on a letter from the
Community Corrections Department to the U.S. Probation Department which
provides, in relevant part, that
[Ashkenazi] was sentenced on October 22, 2002, in the
Southern District of New York to a 12 month 1 day term of
imprisonment, with two years supervised release for
Conspiracy to Commit Bank Fraud. The Honorable Sidney H.
Stein recommended that Mr. Ashkenazi serve his term of
confinement in a community corrections center.
November 1, 2002 Letter from Robert Manco to James Fox.
Even if this letter does establish that the BOP placed Ashkenazi in a
CCC because it mistakenly believed it was complying with the judge's
sentencing recommendation, that would not alter the unconstitutional
nature of the retroactive application of the new BOP policy to
Ashkenazi.*fn14 As addressed above, Plaintiff accepted the plea offer
with the expectation that he was eligible to serve his sentence in a CCC
and that the BOP would exercise its discretion under the old policy. As a
result of the new policy, the BOP is now prohibited from exercising that
discretion — the basis on which that expectation rested.
It is irrelevant that a portion of his CCC confinement may have been
the result of an administrative error on the part of the BOP. Instead,
the critical aspect of the ex post facto violation is that the new policy
makes Plaintiff ineligible to serve his sentence in a CCC and precludes
the BOP from exercising the discretion it had when Plaintiff accepted the
plea agreement. In other words, just as the new statute did in Lynce, the
new BOP policy here "ma[kes] ineligible for [CCC confinement] a class of
prisoners who were previously eligible." Lynce, 519 U.S. at 446.
In sum, there is a substantial likelihood that the retroactive
application of the new BOP policy violates the Ex Post Facto Clause of the
Constitution. Pursuant to the Supreme Court's holdings in Lynce and
Weaver, the retroactive alteration of BOP's placement authority
implicates the ex post facto prohibition because a substantial factor
affecting Plaintiff's decision to plead guilty — his eligibility to
serve his sentence in a CCC and his expectation that the BOP would
exercise its discretion in that regard — has been eliminated as a
matter of law. Because this change in policy was not foreseeable, its
retroactive application violates the Ex Post Facto Clause.
B. The Balance of Harms Weighs in Favor of Plaintiff
As noted above, to obtain a Preliminary Injunction, Plaintiff must
establish not only that he has a substantial likelihood of success on the
merits, but also that the balance of harms weighs in his favor. The
balance of harms includes consideration of the irreparable injury to
Plaintiff, the injury to other interested parties, and the public
First and foremost, it is clear that Plaintiff will suffer irreparable
injury if he is transferred from a CCC to a prison. This is particularly
true because he will be unable to care for his wife — who suffered
life threatening injuries for which she continues to require surgery and
on-going medical care — and attend to his business
if he is confined in a federal prison.*fn15 Moreover, Plaintiff would certainly
suffer irreparable harm as a result of confinement in a prison, rather
than in a CCC.
Defendants counter that Plaintiff will not suffer any imminent injury
because the BOP would merely be complying with the sentencing judge's
recommendation by transferring Plaintiff to a CCC for the first five
months of his sentence. However, Plaintiff's injury is not dependent on
whether his sentence complies with the sentencing judge's non-binding
recommendation. Rather, his injury is a consequence of BOP's inability to
exercise its discretion and place him in the facility it believes is most
With respect to injury to other interested parties, Defendants will not
be substantially injured by a delay in Plaintiff's transfer. While
Defendants certainly have an interest in obtaining the appropriate level
of confinement for offenders, the BOP has been placing Zone C and D
offenders in CCCs for seventeen years.
Obviously, given that history, a delay pending resolution of the
merits of Plaintiff's claim will not cause substantial injury to
Plaintiff's wife, children, and nineteen employees, on the other hand,
will suffer immediate and serious injury. As noted above, Plaintiff's
wife suffers from serious injuries, and is unable to adequately care for
their children without her husband's assistance. As the sole source of
income for their family, Plaintiff's inability to work will also cause
irreparable harm to his family. Further, the nineteen employees in
Plaintiff's business depend on him to operate the company.
Finally, an injunction will further the public interest. The public
certainly has an interest in ensuring that retroactive laws are
constitutional. This is particularly true where, as here, the presumption
against the retroactive application of new laws has been described by the
Supreme Court as "an essential thread in the mantle of protection that
the law affords the individual citizen. That presumption is `deeply
rooted in our jurisprudence, and embodies a legal doctrine centuries
older than our Republic.'" Lynce, 519 U.S. at 439 (quoting Landgraf, 511
U.S. at 265)
Accordingly, the balance of harms weighs in favor of granting
Plaintiff's Motion for a Preliminary Injunction. Because Plaintiff also
has a substantial likelihood of success on the merits of the ex post
facto claim, the Court concludes that injunctive relief is appropriate.
For the foregoing reasons, Plaintiff's Motion for a Preliminary
Injunction is granted. An Order will issue with this Opinion.