The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
Mark Jasperson brings this action against the Federal Bureau of Prisons ("BOP") and Harley G. Lappin, the Director of the Bureau, in his official capacity. His complaint includes two counts, one seeking a declaratory judgment and the other seeking relief under the mandamus statute. Jasperson, who was sentenced to a term of imprisonment of four months, seeks preliminary injunctive relief against BOP, and in particular to have his place of confinement determination reviewed for possible placement in a halfway house. Jasperson previously sought a temporary restraining order, which the court granted pending further review. A hearing was held on the motion for a preliminary injunction, and the court granted the injunction on September 26, 2006, indicating that a more complete discussion of its reasoning would follow. This memorandum provides the court's rationale for its decision.
When Jasperson was sentenced, the district court of the Middle District of Florida "strongly" recommended that he serve his four-month term in a Community Confinement Center ("CCC"). Pl.'s Mot. for Prelim. Inj. Ex. 9, at 3 (Order, Aug. 7, 2006). BOP did not consider the recommendation, but rather, pursuant to 2005 BOP regulations-which purport to categorically exercise BOP's discretion regarding confinement to only allow prisoners to serve the last ten percent of their terms in CCCs-designated a federal prison camp in Atlanta as Jasperson's place of confinement. Pl.'s Mot. for TRO Ex. 1 (Designation); see 28 C.F.R. §§ 570.20--.21. Jasperson challenges the validity of these regulations and asks the court to order BOP to conduct an individualized assessment in order to determine if he should be placed in a CCC. He does not seek an order forcing BOP to make a different designation; rather, he asks that the court require BOP to make his confinement determination taking into account the factors enumerated in the underlying statute, 18 U.S.C. § 3621, without regard to the 2005 regulations.
Jasperson initially filed a habeas petition in the Middle District of Florida. The court there dismissed the petition on the grounds that Jasperson was not yet in custody of BOP and that his petition was therefore premature. The court further suggested that Jasperson re-file the petition after surrendering to the Bureau.
A. Statutory and Regulatory Background
Section 3621(b) of Title 18 directs BOP to designate the place of a prisoner's imprisonment after considering a variety of factors, including "the nature and circumstances of the offense," "the history and characteristics of the prisoner," and "any statement by the court that imposed the sentence" either "concerning the purposes for which the sentence to imprisonment was determined to be warranted" or "recommending a type of penal or correctional facility as appropriate." 18 U.S.C. § 3621(b)(2)--(4). Section 3624 provides for "pre-release custody," and mandates that BOP: shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community.
Prior to 2002, BOP made individualized assessments and frequently assigned prisoners serving short sentences to serve the entirety of those sentences in CCCs, often on the recommendation of the sentencing courts. Both BOP and the courts viewed § 3621 as giving BOP discretion to transfer an inmate to a CCC for longer than six months or ten percent of his sentence, and read § 3624 to separately oblige BOP to transfer inmates to CCCs, where practicable, for a reasonable part of the last ten percent, not to exceed six months, of a given sentence. See Levine v. Apker, 455 F.3d 71, 75 (2d Cir. 2006) (describing history); see also Goldings v. Winn, 383 F.3d 17, 19--20 (1st Cir. 2004) (same); Elwood v. Jeter, 386 F.3d 842, 846--47 (8th Cir. 2004) (same); U.S. Dep't of Justice, Federal Bureau of Prisons Program Statement 7310.04 (Dec. 16, 1998).
In 2002, the Department of Justice Office of Legal Counsel issued a memorandum evaluating this practice and concluding that (1) the courts could not substitute a CCC term for traditional imprisonment and that (2) BOP did not have the authority to impose a CCC term for imprisonment before the last ten percent of the term. See Office of Legal Counsel, U.S. Dep't of Justice, Bureau of Prisons Practice of Placing in Community Confinement Certain Offenders Who Have Received Sentences of Imprisonment, 2002 WL 31940146 (Dec. 13, 2002).
This change in policy triggered a slew of civil actions and habeas petitions by prisoners. A majority of courts reviewing the policy rejected it as being contrary to the statute's requirement that BOP to affirmatively exercise its discretion in considering the factors enumerated in the statute. See, e.g., Elwood, 386 F.3d at 846--47; Pimentel v. Gonzales, 367 F. Supp. 2d 365, 367--68 (E.D.N.Y. 2005) (collecting cases).
In February 2005, largely in response to these decisions, BOP enacted regulations which asserted a "categorical exercise of [its] discretion for designating inmates to community confinement." 28 C.F.R. § 570.20(a). The rule limits CCC designations to the "pre-release custody" program and expressly provides that CCC confinement will only occur "during the last ten percent of the prison sentence being served, not to exceed six months." Id. § 570.21(a). Jasperson challenges the application of this regulation to his confinement determination.
B. Jurisdiction and Related Questions
1. Appropriateness of a Direct Civil Suit Against the Bureau of Prisons
The court must first determine whether a direct civil action, like this one, rather than a habeas petition, is the appropriate vehicle for challenging BOP's determination policy. The majority of (the many) cases challenging BOP's policies regarding placement in halfway houses have been brought as habeas petitions by prisoners already in custody of BOP. The Second and Third Circuits have held that a habeas petition is a proper, if not an exclusive, avenue for challenging the BOP regulations and policies relevant here. See Levine, 455 F.3d at 78; Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241--44 (3d Cir. 2005); see also Pimentel, 367 F. Supp. 2d at 369--71 (petitioner could bring a habeas claim to challenge the BOP policy, but habeas was not his exclusive remedy). The Seventh Circuit, however, has held that habeas is not an available remedy in this context, but rather that prisoners must bring civil actions utilizing the Administrative Procedures Act. Richmond v. Scibana, 387 F.3d 602 (7th Cir. 2004).*fn1
Recent case law, including one decision of the United States Supreme Court and one of the D.C. Circuit, clarifies both the scope of the habeas remedy and, in particular, the circumstances in which habeas is the exclusive remedy a prisoner may pursue. In Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme Court held that two state prisoners could challenge Ohio's parole procedures in Section 1983 actions. Because their challenges sought to render invalid the procedures and did not seek a speedier or immediate release from custody or otherwise "demonstrate the invalidity of confinement or its duration," they did not fall within the "core" of habeas such that habeas was their only available remedy. Id. at 82. Success in the actions would not "mean immediate release from confinement or [shorter stays] in prison," but rather new parole reviews, "which at most would speed consideration"of parole. Id. at 81--82; see also Hill v. McDonough, __ U.S. __, 126 S.Ct. 2096, 2103--04 (2006) (challenge to method of scheduled lethal injection need not be brought in habeas; because injunctive relief in a Section 1983 action would not necessarily foreclose the state from executing the plaintiff by lethal injection, the suit did not seek to establish "unlawfulness [that] would render a conviction or sentence invalid" (quoting Heck v. Humphrey, 512 U.S. 477, 486 (1994))).
In accord with this view of the limited scope of habeas's exclusivity, the D.C. Circuit held in Taylor v. U.S. Probation Office, 409 F.3d 426 (D.C Cir. 2005), that a § 1983 action challenging an inmate's placement in a detention facility, rather than in a halfway house (to which he had been designated by the sentencing court), was properly brought and need not have been styled as a habeas petition. Construing the action as a "challenge to a condition (namely, the location) of [the plaintiff's] confinement, and not its fact or duration," id. at 430, the court held that in light of Wilkinson and Muhammad v. Close, 540 U.S. 749, 751 (2004) (per curiam) (a "prisoner's challenge that threatens no consequence for his conviction or the duration of his sentence" need not be brought in habeas), the prisoner was free to bring a § 1983 action. Id. at 431.*fn2
The court in Taylor also responded to a government argument that the challenge could have been-and therefore must have been-brought in habeas: "This is obviously beside the point," the court wrote. "It may well be that habeas is available where a prisoner alleges that he 'is unlawfully confined in the wrong institution," or "'is being unlawfully detained by the Executive,'" the court wrote, but the principle of Heck holds only that habeas is the exclusive remedy for claims that imply the invalidity of the plaintiff's "conviction or sentence." 409 F.3d at 430 (quoting Preiser, 411 U.S. at 486; Heck, 512 U.S. at 487). The court also cited its prior decision in Brown v. Plaut, a prison-conditions-challenge case in which the court wrote that "[h]abeas corpus might conceivably be available to bring challenges to such prison conditions . . . but requiring the use of habeas corpus in such cases would extend Preiser far beyond the 'core' of the writ that Preiser set out to protect." 131 F.3d 163, 168--69 (D.C. Cir. 1997); see also Docken v. Chase, 393 F.3d 1024, 1028--30 (9th Cir. 2004) (concluding that habeas and § 1983 are not mutually exclusive, and noting that "[t]he [Supreme] Court's central concern . . . has been with how far the general remedy provided by § 1983 may go before it intrudes into the more specific realm of habeas, not the other way around"); Pimentel, 367 F. Supp. 2d at 369--71 (rejecting Richmond and holding that "the fact that [the petitioner's] claims could be brought under the APA does not necessarily preclude a separate remedy under habeas corpus"); cf. Smith v. United States, 277 F. Supp. 2d 100 (D.D.C. 2003) (reviewing the merits of a § 2255 habeas motion challenging the plaintiff's assignment to a prison camp instead of a CCC).*fn3*fn4
Thus while BOP may be correct in arguing that Jasperson's action could be brought upon his surrender to BOP as a habeas petition, it does not follow that his ...