Bureau of Prisons Statutory Mandate Permits Creation of Categorical Rules to Guide Prison Placement Discretion

for disregarding required considerations and ordering bop to reconsider petitioner's ccc placement), rev'd characteristics of the prisoner, and any statement by the court that imposed the sentence." levine v. apker, distinguished lopez, because § 3621(b), in contrast to § 3621(e)(2)(b), contains reasoned that even a statutory scheme that requires individualized determinations allows the decision-maker the deems a facility is unsuitable before consideration of the factors is contrary to codagnone_comment_wdff supported.33 two prisoners, richard muniz and victor j. gonzalez, sought writs of the bop's 2005 regulations, which restrict prisoner placement without exercise of discretion. id. statute.52 during the prison term. goldings v. winn, 383 f.3d 17, 28-29 (1st cir. 2004). the court determined that § if the statute is silent or ambiguous 22. see elwood v. jeter, 386 f.3d 842, 845 (8th cir. 2004) (considering 2002 policy's denial of ccc to guide judicial review of an agency's interpretation of would have been eligible for ccc placement one month earlier under the pre-2002 regulations. id.; see also muniz and gonzalez bop's statutory authority because the statute allowed placement, or transfer, of a prisoner to a ccc at any time lopez); see also supra notes 30-31 and accompanying text (explaining supreme court's analysis and holding in in addition, does not limit the bop's discretion to designate ccc placement at an earlier time. id. at 24. the eighth concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (deciding regulations do not provide required individualized consideration); fults v. sanders, 442 f.3d 1088, factors considered by bop when creating regulations). rejection of cccs suitability permissible); fults v. sanders, 442 f.3d 1088, 1093 (8th cir. 2006) (riley, j., regulations permit.8 more narrowly than, as the first circuit posed the question, whether congress in muniz v. sabol,4 the bop, as it has when such unequal administration of bop policy has codagnone_comment_wdff selected, the bureau [was] specifically required to consider such factors as [those listed in § 3621(b)]." s. rep. review of agency's construction of statutory mandate); see also miller v. whitehead, 527 f.3d 752, 755-758 the appropriate inquiry asks whether congress intended the bop to have the 41. id. at 36 (relying on lopez to support conclusion on bop's rulemaking authority). deference to permissible agency interpretation of ambiguous statute). if congressional intent is clear, then the see also 28 u.s.c. § 2241 (2006) (permitting writs of habeas corpus for petitioners seeking relief from manner 56. see lopez v. davis, 531 u.s. 230, 240 (2001) (holding bop may create categorical rules to resolve accompanied by a dissent, maintaining the 2005 regulations were consistent authority of law. by upholding these regulations, and disagreeing with four the first four federal courts of appeals to consider the 2005 regulations' the statutory circuits. rodriguez v. smith, 541 f.3d 1180, 1187-88 (9th cir. 2008) (agreeing regulations conflict with statute 17. 517 f.3d at 40 (holding bop's 2005 regulations reasonable and not contrary to bop's statutory rules to resolve issues of general applicability.31 indicated intent to not limit overall discretion). 51. see supra notes 27-28 and accompanying text (explaining chevron doctrine analysis for judicial sabol, 517 f.3d 29, 31 n.1 (1st cir. 2008) (noting cccs similar to halfway houses). concluded that the bop's affirmative obligation to provide re-integration via ccc placement at a term's end congressional command requiring consideration of the enumerated factors.15 1. see 18 u.s.c. § 3621(b) (2000) (conferring inmate placement authority to bop). regulations and effect upon petitioners), rev'd sub nom. muniz v. sabol, 517 f.3d 29 (1st cir. 2008); see also in the second step of the chevron-doctrine analysis, the first circuit circuit similarly held that § 3621(b) gave the bop discretion to direct prisoners to cccs at any time during 40. id. at 35-36 (identifying "near-identical language" when comparing statutory provisions at issue in deference for a regulation created pursuant to 18 u.s.c. § 3621(e)(2)(b).30 justification" necessitated longer ccc placement. id. the eighth circuit determined that ps 7310.04 was capricious, or manifestly contrary to the statute."28 f.3d 235, 249-51 (3d. cir. 2005. the supreme court could potentially resolve the circuit split; however, the 46. 517 f.3d at 39 (discussing 2005 regulations' consideration of deterring future crime and inmates' 2. see infra note 18 and accompanying text (providing and explaining placement statute). see generally facility after five-factor consideration); see supra note 18 and accompanying text (setting forth language of § volume xlii first circuit review 2009 number 2 imprisonment and would have been eligible for ccc placement three months earlier under the 2002 regulations congress vested the bop with the authority to assign inmates to any permitted ccc placement for the last six months of a prisoner's term, 37. see wedelstedt v. wiley, 477 f.3d 1160, 1169-71 (10th cir. 2007) (hartz, j., dissenting) (reasoning possibility of placement in one facility to each prisoner without regard to the set forth a two-part test.26 of a non-violent offense and completion of drug treatment--were met, the bop 27. see chevron, u.s.a., inc. v. natural res. def. council, inc., 467 u.s. 837, 842 (1984) (requiring created with this authority is controlling unless "arbitrary, capricious, or manifestly contrary." id. at 844. intent to require consideration of each of the enumerated factors when applying chevron, these courts determined the statute had a plain meaning statement issued by the sentencing commission pursuant to § 994(a)(2) of title 28. intent is clear that the factors must be considered before the bop can exercise 9. see muniz v. winn, 462 f. supp. 2d 175, 177 (d. mass. 2006) (explaining inmate placement 171 (2005) (describing history of bop's inmate placement discretion and interaction with courts). while the placement decisions, the court considered the legislative history and observed codagnone_comment_wdff considering five factors. id. at 38. where the gap is implicit, the interpretation is still given deference if it is reasonable. id. 12. muniz v. winn, 462 f. supp. 2d 175, 181-85 (d. mass. 2006) (analyzing bop's authority to (considering whether new regulations contradict congressional directives). 48. id. (holding regulations valid exercise of discretion); see also supra note 32 (noting five other circuit intent. id. at 243-44 (quoting am. hospital ass'n v. nlrb, 499 u.s. 606, 612 (1991)). this policy 30. lopez v. davis, 531 u.s. 230, 238 (2001) (considering bop's categorical rulemaking power). the bop's authority). the bop issued a memorandum to federal judges, announcing that the olc's interpretation was to be effective after analyzing the of ccc placement authority stemmed exclusively from 18 u.s.c. § 3624); see also bussert et al., supra note placement in cccs to all prisoners during the first 90 percent of their sentences the bop may draft a that placement will not always be the same, and thus placement cannot be 55. see fults v. sanders, 442 f.3d 1088, 1090-91 (8th cir. 2006) (distinguishing § 3621(b) and § permissible even though the regulation required prisoners to make a stronger showing to justify longer ccc requiring consideration of enumerated factors, which legislative history meaning of statute), rev'd sub nom. muniz v. sabol, 517 f.3d 29 (1st cir. 2008). the command requiring in muniz v. sabol, the first circuit created a circuit split by holding that muniz and in lopez). the first circuit determined the intent congress expressed in the placement statute was practicable, in cccs at the end of their prison term.19 the analysis ends there; a regulation that yana dobkin, cabining the discretion of the federal bureau of prisons and the federal courts: interpretive 1088, 1091 (8th cir. 2006) (distinguishing lopez holding because statute at issue offers no specific criteria to 432 f.3d 235, 249 (3d cir. 2005) (deciding regulations constitute impermissible construction of statute). after individual circumstances. it is possible that this disparity will be resolved by courts invalidated 2005 regulations). than the 2005 regulations. id. gonzalez was serving a sixty-three month term of imprisonment and, similarly, the correct answer to the inquiry is "no," because congressional authority). 64. see bracken, supra note 32, at 538-39 (discussing resolution of circuit split). an administrative they conflict with statute's plain meaning); levine v. apker, 455 f.3d 71, 81 (2d cir. 2006) (holding discretion to create rules to resolve issues of general applicability, unless prohibited by clear congressional with § 3621(b).17 maximum placement in cccs, rather than the previous six-month maximum. second chance act § 251, 122 with respect to this precise question at issue, the court should defer to the plain meaning). given the individualized nature of the factors, a blanket rule without exceptions cannot clear congressional intent). the court began its analysis by conducting the two-step chevron doctrine analysis, treatment by acting promptly to cure the discord. until resolved, prisoners in validity concluded the categorical exercise of discretion was unlawful because 14. muniz v. winn, 462 f. supp. 2d 175, 182, 185 (d. mass. 2006) (invalidating 28 c.f.r. §§ 570.20-.21 consideration of the enumerated factors was intended to guide the bop's determination of what is an no. 98-225 (1983), as reprinted in 1984 u.s.c.c.a.n. 3182, 3324-25. facility is unsuitable, without first considering the factors specified in the the factors was not intended as a limitation of the bop's discretion. id. but see woodall v. fed. bureau of required factors entails individualized decisions); fults v. sanders, 442 f.3d 1088, 1092 (8th cir. 2006) contended that the bop policy in place before 2002 (pre-2002 policy) would the first circuit's muniz decision, the ninth circuit considered the same issue and agreed with the other four 2002 policy). the iacaboni court noted "that recommendations to cccs have been made in thousands of cases contrary to statutory mandate); levine v. apker, 455 f.3d 71, 87 (2d cir. 2006) (deciding regulations failed to 1088, 1092 (8th cir. 2006) (confirming plain meaning with support in legislative history); woodall v. fed. placement statute without considering legislative history); levine v. apker, 455 f.3d 71, 80-83 (2d cir. 2006) time period in which a habeas petition will be ripe--after the pre-2002 policy 53. see s. rep. no. 98-225 (1983), as reprinted in 1984 u.s.c.c.a.n. 3182, 3324-25 (stating bop to and prepare for . . . reentry"). the second chance act's amendment of § 3624(c) resulted in twelve-month categorical rule that declined to evaluate any one of the factors. id. at 181. and allow for a good-faith evaluation of their placement with the possibility of cir. 2005). but see community confinement, supra note 23, at 51214-15 (maintaining all statutorily specified contradicted the statute's plain meaning and granted the habeas petitions.14 for ccc placement for lower-level offenders' entire terms.20 guidelines to determine that community confinement was not a place of imprisonment for § 3621 purposes. factors in creating the 2005 regulations.46 2008). (concluding analysis of required factors on categorical basis impossible); woodall v. fed. bureau of prisons, 36. see wedelstedt v. wiley, 477 f.3d 1160, 1168 (10th cir. 2007) (determining three factors require individualized factors impossible under regulations); levine v. apker, 455 f.3d 71, 86-87 (2d cir. 2006) provided it consider the five specified factors. woodall v. fed. bureau of prisons, 432 f.3d 235, 245 (3d cir. placement assessments.5 in light of the supreme court's decision in lopez. id. at 34. the analysis required the court to ask whether the factors to guide placement decisions. id. manner to provide fair, equal, and legally permissible prison placement, 63. see miller v. whitehead, 527 f.3d 752, 755-58 (8th cir. 2008) (determining new regulation ps the first circuit reversed the district court and held that the bop could apply 7. see muniz v. winn, 462 f. supp. 2d 175, 177 (d. mass. 2006) (noting petitioners' claims among fed. bureau of prisons, 432 f.3d 235, 249 (3d cir. 2005) (concluding 2005 regulations conflict with statute's §§ 570.20-.21) [hereinafter community confinement] (proposing 2005 regulations). responsibility act, 57 cath. u. l. rev. 511, 538-39 (2008) (discussing ways to resolve circuit splits like one prisoners complete the process of appeals, which enhances the necessity of an expedited decision. id. at 184. (reasoning categorical rulemaking must not contradict congressional guidelines); fults v. sanders, 442 f.3d regulations were termed a "categorical exercise of discretion," restricting the validity of the 2005 regulations and the need for effective dispute resolution, intent in conducting the first step of chevron.50 of that discretion.6 statutorily required to undertake, which rendered the regulations superseding regulation bearing in mind a recent decision by the eighth circuit, other federal courts of appeals, the first circuit injects inconsistency into the 5. see id. at 34-35 (outlining issue presented to first circuit). 23. 28 c.f.r. §§ 570.20-.21 (2005) (limiting inmate ccc placement). the time limitations may only be 44. id. at 38 (determining regulations reasonable exercise of bop's statutory discretion). guidance for the exercise of discretion, rather than a lack of discretion.35 (finding plain meaning and quoting senate judiciary committee report); see also fults v. sanders, 442 f.3d court, in lopez v. davis,29 consider); woodall v. fed. bureau of prisons, 432 f.3d 235, 246-47 (3d cir. 2005) (reasoning because facilities were categorically unsuitable for inmates during the first 90 percent of 54. see 517 f.3d at 34-37 (deeming chevron and lopez analyses "interrelated" and determining § 3621(e) concluded that once the two prerequisites for sentence reduction--conviction violation of unambiguous congressional intent. 15. muniz v. winn, 462 f. supp. 2d 175, 180-81 (d. mass. 2006) (determining that discretion to decide court reasoned the regulations were invalid because they foreclosed the court denied certiorari in muniz. see 129 s. ct. 115 (2008). after concluding that the had discretionary authority, but not a duty, to grant early release, and to create consideration of statutory factors mandatory); fults v. sanders, 442 f.3d 1088, 1092 (8th cir. 2006) (holding 21. see woodall v. fed. bureau of prisons, 432 f.3d 235, 240 (3d cir. 2005) (noting olc's interpretation discretion to create a categorical rule deciding that an otherwise available available penal or correctional facility that meets the minimum standards of 286 suffolk university law review [vol. xlii:285 narrower issue: placement within cccs for specific durations.45 promulgating the regulations, the courts determined that this was without merit they do not allow for the individualized consideration required by statute.32 of required factors). congress authorized the bop to implement a categorical rule denying the facility is suitable for a prisoner.57 application of policies intended to be applied uniformly. moreover, the 34. see wedelstedt v. wiley, 477 f.3d 1160, 1168 (10th cir. 2007) (indicating consideration of additionally, the bop congressional mandate by denying the bop authority to render individualized 58. see wedelstedt v. wiley, 477 f.3d 1160, 1168 (10th cir. 2007) (holding regulations invalid because for most prisoners, there is only a short the 2005 regulations prompted challenges from affected prisoners resolution of their petitions. id. at 183-84. many petitions, including petitioner muniz's, become moot before rev'd sub nom. muniz v. sabol, 517 f.3d 29 (1st cir. 2008). muniz was serving a thirty-month term of voluntary departure and motion to reopen provisions of the illegal immigration reform and immigrant 20. see fults v. sanders, 442 f.3d 1088, 1089 (8th cir. 2006) (detailing pre-2002 policy on ccc placement policy was contrary to its statutory mandate, and ccc placement categorical rules to assist in the exercise of its discretion while still complying 16. muniz v. winn, 462 f. supp. 2d 175, 183-84 (d. mass. 2006) (explaining reasons for certification of although the bop asserted it had considered the enumerated factors when its individualized determinations.39 the district court of massachusetts certified the case for immediate appeal.16 language.40 instead of a lack of guidance, the statute's plain their sentences or for terms exceeding six months.44 32. see wedelstedt v. wiley, 477 f.3d 1160, 1168 (10th cir. 2007) (invalidating 2005 regulations as address each individual prisoner's circumstances. woodall v. fed. bureau of prisons, 432 f.3d 235, 248 (3d 28. see chevron, u.s.a., inc. v. natural res. def. council, inc., 467 u.s. 837, 843-44 (1984) (requiring bureau of prisons, 432 f.3d 235, 245-47 (3d cir. 2005) (noting support in legislative history of determined the plain meaning of the statute and cannot be upheld.58 consistent); levine v. apker, 455 f.3d 71, 87-91 (2d cir. 2006) (raggi, j., dissenting) (construing regulations' two-way street, 15 se. envtl. l.j. 395 (2007) (outlining how courts should apply chevron deference). sub nom. muniz v. sabol, 517 f.3d 29 (1st cir. 2008). the court compared § 3621(e)(2)(b) with § creating this regulation, the bop systematically excluded categories of inmates from early release eligibility, exceeded where required by separate statutory authority, such as substance abuse treatment required by § plain language of the statute was ambiguous as to rulemaking to guide 42. 517 f.3d at 37-38 (concluding legislative history ambiguous). the court determined that the 3621(b) required consideration of the factors in a broader context than the regulations accomplish alone. id. 8. see muniz v. winn, 462 f. supp. 2d 175, 177 (d. mass. 2006) (detailing petitioners' claim for relief), lopez inapplicable); woodall v. fed. bureau of prisons, 432 f.3d 235, 246-47 (3d cir. 2005) (distinguishing categorical rules limited by contrary congressional intent); levine v. apker, 455 f.3d 71, 85 (2d cir. 2006) an instruction that the bop consider five factors when utilizing its discretion. id. at 35. the court determined bussert et al., supra note 20, at 22. the olc also opined that the timeframe for community re-integration in § the court concluded the bop specifically took into account some of the five placement decisions, the court did not perceive this to be a clear expression of discretion and concluded that the 2005 regulations were a reasonable exercise justice office of legal counsel's (olc) position that the bop's ccc 3621(e)(2)(b)). the section considered in lopez, § 3621(e)(2)(b), offered no guidance other than initially statutory gap that left a lack of guidance in lopez, congress has expressly citing the division among district courts within the first circuit over the the bop has discretion under § 3621(b) to assign prisoner the failure to consider first the congressionally mandated factors resulted in 292 suffolk university law review [vol. xlii:285 administrative law--bureau of prisons statutory mandate permits creation 50. see 517 f.3d at 34-35 (framing issue under chevron doctrine analysis); see also supra note 39 and applying chevron, the court concluded categorical decisions within that class. id. at 1091. conversely, § 3621(b) is distinct because it outlines five affected prisoners challenged the 2002 policy change, and it was 7310.04 a permissible exercise of discretion under statutory mandate). in response to fults v. sanders, the 26. see chevron, u.s.a., inc. v. natural res. def. council, inc., 467 u.s. 837, 842-43 (1984) (outlining invalidated; in response, the bop enacted the 2005 regulations.22 particularly time sensitive and should be dealt with in the most expedient 455 f.3d 71, 86 (2d cir. 2006) (citing 18 u.s.c. § 3621(b)(1)-(4)(2000)). statutory authority to issue the 2005 regulations.12 iacaboni v. united states, 251 f. supp. 2d 1015, 1017 (d. mass. 2003); see also todd bussert et al., new time 31. lopez v. davis, 531 u.s. 230, 240 (2001) (analyzing bop's categorical rulemaking authority under the plain language of § 3621(b) and its legislative history were ambiguous with case comments the chevron law review amy l. codagnone and characteristics of the prisoner; (4) any statement by the court that imposed the sentence--(a) the first circuit will continue to be categorically denied placement in cccs, in 20, at 22-24 (discussing olc reasoning and 2002 bop rule changes). the olc relied on the sentencing congressional intent. id. the court determined the statute's plain language revealed a grant of discretion and the requirement of individualized determinations was insufficient to infer congressional intent to disallow 39. id. at 34-38 (analyzing plain language of placement statute and legislative history and determining no general applicability to guide the individualized application of its statutory the first circuit court of at 238. appropriate placement limited by enumerated factors), rev'd sub nom. muniz v. sabol, 517 f.3d 29 (1st cir. generally applicable.56 historically, the bop the courts of appeals ensure inmates' placement resolved promptly), rev'd sub nom. muniz v. sabol, 517 f.3d 29 (1st cir. 2008). 33. see wedelstedt v. wiley, 477 f.3d 1160, 1165-67 (10th cir. 2007) (discerning plain meaning of designating places of imprisonment.13 "flurry of indistinguishable habeas petitions" challenging bop's 2005 regulations), rev'd sub nom. muniz v. circuit held the 2005 regulations were a permissible statutory construction and currently located in cccs but deemed no longer eligible for that placement, challenged the policy. bussert et inmates, and its legislative history, the district court interpreted congressional must prepare prisoners for re-integration into society by placing them, if inquiry begins with a consideration of whether congress expressed clear intent statutory mandates); 28 c.f.r. §§ 570.20-.21 (2005) (responding to invalidity of 2002 policy and creating the 2005 sentences, not to exceed six months, with exceptions only for inmates involved 13. muniz v. winn, 462 f. supp. 2d 175, 180-81 (d. mass. 2006) (finding regulations contrary to plain issues of general applicability, the individualized nature of the factors indicate its statutory authority, the supreme court in chevron, u.s.a., inc. v. natural leaving the placement of prisoners in the circuit governed by impermissible regardless of in which circuit the inmate is imprisoned.62 while asserting that this categorical exclusion was within its discretion to prescribe additional early release legislative history could support both its reading of the statute, as well as the other circuits' readings, which plain meaning). the legislative history stated that "[i]n determining the availability or suitability of the facility 24. see generally bussert et al., supra note 20, at 20 (detailing circuit courts' contradictory rulings on while congress intended consideration of the five factors in codagnone_comment_wdff 3621(b)). dissenting) (reasoning individualized determinations only required for transfer); woodall v. fed. bureau of 288 suffolk university law review [vol. xlii:285 limits on federal halfway houses, 21 crim. just. 20, 21 (2006) (explaining bop history and policy prior to decided the final issue of placement categorically. id. 3624(c) acted as a restriction on the grant of discretion contained in § 3621. bussert et al., supra note 20, at 22. resolved by congress or the bop.59 administrative agency to fill, authority was delegated to the agency to craft regulations and the regulation supreme court held that categorical rules are a permissible way to resolve the drafting a new regulation to provide uniform prisoner placement in all inmates.1 3621(e)(2)(a). id.; see community confinement, 69 fed. reg. 51213 (aug. 18, 2004) (codified at 28 c.f.r. 3621(b) and concluded that the two sections contained the same permissive al., supra note 20, at 23-24. meaning was impossible under the 2005 regulations.34 denied placement and transfer to community correction centers (cccs) until therefore, petitions may become moot 49. 18 u.s.c. § 3621(b) (2000) (providing bop authority to designate inmates to any available penal 43. id. at 38-40 (asking whether 2005 regulations reasonably interpreted statute and deferring to bop's placement. id. at 758. unlike the 2005 regulations, ps 7310.04 did not categorically remove the bop's codagnone_comment_wdff 18 u.s.c. § 3621(e)(2)(b)). the supreme court held that § 3621(e)(2)(b) gave the bop discretion to make extraordinary circumstances.63 placement in a suitable facility, considering five enumerated factors.49 muniz and gonzalez argued the 2005 2009] case comment 291 codagnone_comment_wdff placement); goldings v. winn, 383 f.3d 17, 19 (1st cir. 2004) (determining 2002 policy inconsistent with their prison terms. elwood v. jeter, 386 f.3d 842, 847 (8th cir. 2004). 52. see levine v. apker, 455 f.3d 71, 84 (2d cir. 2006) (considering whether bop can create categorical 2009] case comment 289 regulation provides a fair resolution to the circuit split, and its attainment is less arduous than that of either a prisoners in a ccc eleven to thirteen months before their expected release date, unless "extraordinary financial resources); see also community confinement, supra note 23, at 51214-15 (considering all statutorily sentence reductions if the prisoner met two factors, but did not address how to exercise the discretion. id. at determined that it should defer to the bop's statutory construction.43 they requested that the court invalidate the 2005 regulations the only judicial inquiry is whether the agency has reasonably filled the statutory gap. id. at 242. the court inquiry into congressional intent). courts should apply the ordinary canons of statutory construction to 3621(b) was not limited by § 3624(c). goldings v. winn, 383 f.3d 17, 28-29 (1st cir. 2004). the court further in specific statutorily created programs.23 the courts concluded that giving full effect to the statute's plain its discretion in assigning appropriate placement.53 litigation of habeas corpus petitions is slow, and inmates stand to lose their individual rights while waiting for individualized consideration). at least three of the five factors that congress enumerated require an congressional intent, the first circuit erroneously upheld the bop's policy, the court found the 2005 regulations (concluding consideration of factors beforehand impossible); woodall v. fed. bureau of prisons, 432 f.3d 235, infra note 23 and accompanying text (summarizing 2005 regulations). lopez). "appropriate and suitable" facility. id. at 180-81. this plain requirement foreclosed the possibility of a not the type of clear expression of intent to withhold rulemaking authority required by lopez. id. at 36. categorical exercise of discretion was permissible and, if so, whether the regulation's substance comported with allowed consideration for ccc placement and before he or she is eligible for which affirmed a categorical rule for ccc placement with an exception for placement); see also iacaboni v. united states, 251 f. supp. 2d 1015, 1017 (d. mass. 2003) (discussing pre- and § 3621(b) contain "near-identical language"); levine v. apker, 455 f.3d 71, 85-86 (2d cir. 2006) (deciding the court appropriate, the bop designated cccs for the entirety of a prisoner's sentence. see bussert et al., supra, at 20. considered until inmate considered for transfer). appeal), rev'd sub nom. muniz v. sabol, 517 f.3d 29 (1st cir. 2008). statutory authority.24 without relief and the problem without resolution.61 prisons, 432 f.3d 235, 244 (3d cir. 2005) (concluding statute's text and history unambiguous and only 59. compare 517 f.3d at 40 (upholding bop's 2005 regulations), with woodall v. bureau of prisons, 432 "specifically required" to consider the factors in deciding placement). id. the first circuit determined that the by hundreds of judges continuously since at least 1965, and in nearly all instances accepted by the bop." court and the agency are both required to give effect to this unambiguous intent. id. at 842-43. the court, 2009] case comment 287 individual consideration); levine v. apker, 455 f.3d 71, 86 (2d cir. 2006) (concluding consideration of judicial deference to administrative rules, 17 yale j. on reg. 327, 328 (2000) (introducing supreme court's accompanying text (analyzing first circuit's treatment of chevron's first question). 1092 (8th cir. 2006) (determining not possible to consider factors on individualized basis); woodall v. fed. rulemaking. id. at 36. the first circuit held the bop could make rules of limitation on ccc placement); woodall v. fed. bureau of prisons, 432 f.3d 235, 241 (3d cir. 2005) 60. see fults v. sanders, 442 f.3d 1088, 1089-90 (8th cir. 2006) (explaining temporal differences in ccc specified factors when creating regulations). because previous circuit splits over bop criteria. see lopez v. davis, 531 u.s. 230, 235-36 (2001). the supreme court in lopez addressed whether the 294 suffolk university law review [vol. xlii:285 bop's 2005 regulation invalid because it conflicts with § 3621(b) duty to consider five factors); woodall v. suffolk university construction." id. at 843. administrative agencies will necessarily be required to create their own policies to for a period not to exceed six months.9 by ccc placement before litigation can settle the conflict, leaving the prisoner conclusion by posing the issue too generally when considering congressional outlined factors for the bop to consider in placement decisions.55 scheme considered by the first circuit is notably different because, unlike the regulations.48 individualized factors required by § 3621(b) not generally applicable, lopez therefore not controlling). individualized factors before selecting a suitable penal facility for each inmate.2 requiring that the prisoner be a nonviolent offender to be eligible; thus, the bop had discretion to make circuits.64 45. id. at 39 (concluding regulations create "background rule"). the first circuit determined that § first circuit did not dispute this interpretation, but came to its incorrect concluded that the bop was reasonable in deciding that some placement fill gaps left by congress, whether left implicitly or explicitly. id. if congress explicitly left a gap for the habeas corpus in the united states district court for the district of the last 10 percent of a sentence.3 in 2005, the bop created regulations (2005 regulations) that categorically 242. the court noted that where congress enacts a law that does not answer "the precise question at issue," sabol, 517 f.3d 29 (1st cir. 2008). the petitions were consolidated for consideration by the district court. id.; because of the factors' individualized nature.36 their placement and ability to seek transfer were rules, statutory interpretation, and the debate over community confinement centers, 91 cornell l. rev. issues of general applicability); levine v. apker, 455 f.3d 71, 86 (2d cir. 2006) (concluding factors require placement determinations under pre-2002 policy), rev'd sub nom. muniz v. sabol, 517 f.3d 29 (1st cir. 2008); prisons, 432 f.3d 235, 251-52 (3d cir. 2005) (fuentes, j., dissenting) (determining factors need not be contending that the bop policy behind the 2005 regulations contradicts its the resulting circuit split will cause unequal administration of the law until created by first circuit in muniz). have allowed them to be considered for ccc placement earlier than the 2005 19. 18 u.s.c. § 3624(c)(1) (2000) (requiring bop to "afford" prisoners "reasonable opportunity to adjust consider factors required by statutory mandate); fults v. sanders, 442 f.3d 1088, 1092 (8th cir. 2006) occurred previously, and the bop has recognized the need for uniform prisoner continued application of these regulations violates each first circuit prisoner's congress delegates authority to the bureau of prisons (bop) to place codagnone_comment_wdff successfully competed a treatment program may be reduced by the bop. 18 u.s.c. § 3621(e)(2)(b) (2000). in 62. see muniz v. winn, 462 f. supp. 2d 175, 183-85 (d. mass. 2006) (certifying for expedited appeal to congressional intent to exclude all rulemaking.41 determined, however, pursuant to the bop's 2005 regulations, and they were intended to foreclose all rulemaking to assist in individualized determinations.51 of execution of sentence). should instead be limited to the lesser of 10 percent of the total sentence or six statement (ps) 7310.04. id. at 754-55. under ps 7310.04, the bop would "normally" decide whether to place bop directed officials at facilities in the eighth circuit to place prisoners under the 1998 plan, program 29. 531 u.s. 230 (2001). 25. 467 u.s. 837 (1984). by failing to recognize that the 2005 regulations contradict unambiguous amount of time inmates may spend in cccs to the last 10 percent of their based on the permissive language used in the statute, the supreme court 61. see levine v. apker, 455 f.3d 71, 76-77 (2d cir. 2006) (explaining when habeas corpus petition regulations have prompted the bop to modify its policy and because new in its conclusion that the statutory language is ambiguous, the first circuit stat. 657, 692 (2007). ineligible for placement in a ccc until the last 10 percent of their sentences, and declining to follow first circuit). see generally michael p. bracken, the proper interplay of the language of 18 u.s.c. § 3621(b), the statute authorizing the bop to place the bureau may designate any available penal or correctional facility . . . considering--(1) the (b) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy in determining inmate placement, the bop must consider five 517 f.3d 29 (1st cir. 2008), cert. denied, 129 s. ct. 115 (2008) health and habitability after considering five factors.18 290 suffolk university law review [vol. xlii:285 the court reasoned that deciding a subissue on a categorical basis was different than if the bop were to have bop had discretion to delineate additional categories of inmates who would be ineligible for early release. id. order was tempered, and thus the legislative history was ambiguous, because it also stated that the inclusion of however, explicitly noted that where a statute is ambiguous, the reviewing court should not impose "its own standard for review of agency regulations). see generally matt kenna, chevron deference to agencies: a 2005 regulations illegal), rev'd sub nom. muniz v. sabol, 517 f.3d 29 (1st cir. 2008). each majority decision was upheld the bop's categorical exercise of discretion.47 of categorical rules to guide prison placement discretion--muniz v. sabol, regarding the "precise question at issue."27 47. 517 f.3d at 40 (upholding 2005 regulations). determine if congress spoke to the precise question at issue. see david m. hasen, the ambiguous basis of 2009] case comment 293 11. muniz v. winn, 462 f. supp. 2d 175, 177 (d. mass. 2006) (explaining petitioners argued for placement under the 2005 regulations.60 becomes moot). see infra note 20 and accompanying text (detailing pre-2002 placement policy). congressionally given right to be placed in a facility deemed suitable to their interpretation). the congressional mandate instructed the bop to place each prisoner in a suitable facility after 3. see infra note 23 and accompanying text (explaining effect of 2005 regulations); see also muniz v. placement under pre-2002 and 2005 regulations). promulgate regulations), rev'd sub nom. muniz v. sabol, 517 f.3d 29 (1st cir. 2008). congressional intent regarding the precise issue, the inquiry must be phrased 2005) (analyzing meaning and history of § 3621(b)). unenforceable.10 resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history massachusetts challenging their prison placement.7 agency's construction if it is permissible--that is, if it is not "arbitrary, codagnone_comment_wdff which the statute charged the bop, but rather the regulations resolved a 38. 517 f.3d at 31 (reversing district court holding and creating circuit split). months.21 codagnone_comment_wdff made the statute sufficiently ambiguous. id. at 38. language reveals just the opposite--five factors to assist in determining which the court next observed congressional amendment or a supreme court decision. id. at 538-39. regardless of the length of the sentence, and honored judicial recommendations individualized assessment: "the nature and circumstances of the prisoner's offense, the history and or for terms exceeding six months.38 considered whether the bop was entitled to agency statute requiring individualized consideration and regulations governing particular housing choice possibly statute provides that the sentence of a prisoner who was convicted of a nonviolent offense and who has infra notes 20-23 and accompanying text (explaining bop's ccc regulation changes from 2001 to 2005). regulations will likely provide the quickest resolution, the bop should consider categorical exercise of discretion). the first circuit concluded the 2002 policy was inconsistent with the codagnone_comment_wdff ccc placement under the bop's pre-2002 policy.11 18 u.s.c. § 3621(b) (2000). the statute proscribes that the bop may place a prisoner wherever it wants, bureau of prisons, 432 f.3d 235, 245-46 (3d cir. 2005) (concluding regulations do not allow full consideration 18. 18 u.s.c. § 3621(b) (2000) (conferring placement authority to bop). appeals considered whether the 2005 regulations were contrary to the bop's 6. see id. at 40 (holding promulgation of 2005 regulations valid exercise of discretion). with the statute and deferring to the bop's construction.37 changed in 2002, when the bop adopted and implemented the department of that the 2005 regulations did not categorically decide all placements, with 4. 517 f.3d 29 (1st cir. 2008), cert. denied, 129 s. ct. 115 (2008). immediately and applied retroactively. bussert et al., supra note 20, at 22. some prisoners, who were incorrectly relied on the supreme court precedent of lopez.54 as such, the issue is respect to a congressional intent to foreclose all rulemaking to assist the bop in 57. see levine v. apker, 455 f.3d 71, 81 (2d cir. 2006) (concluding plain meaning of § 3621(b) requires in 2001, the supreme steps necessary to review agency's interpretation of its controlling statute). 35. see wedelstedt v. wiley, 477 f.3d 1160, 1168 (10th cir. 2007) (deciding agency's authority to create based on its analysis, the first to discern accurately 248 (3d cir. 2005) (deciding individual consideration required). (8th cir. 2008) (holding regulation with categorical exercise of discretion permissible under § 3621(b)). resources defense council, inc.,25 regulations did not allow for the individual consideration that the bop was 2002). prior to 2002, the bop openly promoted the use of cccs for low-risk offenders, and where that it was similarly vague.42 the district court began its analysis with a consideration of the bop's 10. muniz v. winn, 462 f. supp. 2d 175, 177 (d. mass. 2006) (noting petitioners argued placement under considering factors before placement).