Goldings v. Winn

United States Court of Appeals
For the First Circuit

No. 03-2633

MORRIS M. GOLDINGS,

Plaintiff, Appellant,

v.

DAVID L. WINN and JOHN ASHCROFT,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[William G. Young, United States District Judge]

Before

Lipez and Howard, Circuit Judges,
and Lisi,* District Judge.

Morris M. Goldings on brief pro se.
George B. Henderson, II, Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, was on brief
for appellees.
Charles W. Rankin and Peter Goldberger for National
Association of Criminal Defense Lawyers, Criminal Justice Act
Board, and Families Against Mandatory Minimums Foundation, amici
curiae.

September 9, 2004

_______________________
* Of the District of Rhode Island, sitting by designation.
 LIPEZ, Circuit Judge. Morris Goldings, an inmate at the

Federal Medical Center Devens, in Ayer, Massachusetts, brought this

civil action against the Warden of FMC Devens, David Winn, and

Attorney General John Ashcroft, challenging a change in policy by

the Bureau of Prisons ("BOP") that limited his eligibility for

placement in a community corrections center ("CCC") to the last ten

percent of his sentence. He sought declaratory and injunctive

relief enjoining the defendants from applying the new policy to

him. The defendants moved to dismiss the complaint for failure to

state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

The district court granted the motion, and Goldings appealed.

The policy change that is the subject of this lawsuit was

required by a December 13, 2002 Memorandum Opinion from the

Department of Justice Office of Legal Counsel, which declared

unlawful the BOP's prior practice of placing federal prisoners in

community confinement to serve all or part of their sentences.

Goldings argues that the BOP's policy is based on an erroneous

interpretation of two statutory provisions of the Sentencing Reform

Act of 1984, 18 U.S.C. § § 3621(b) and 3624(c). According to this

interpretation, these two provisions limit the BOP's discretion to

place prisoners in CCCs to the lesser of the last six months or ten

percent of their terms of imprisonment. Although the change in

policy has generated a flood of lawsuits in the federal district

courts, no court of appeals has yet spoken on the validity of the

-2-
BOP's new policy. We do so here and conclude that the new policy

is contrary to the plain meaning of 18 U.S.C. § 3621(b).

I.

On July 17, 2002, Goldings pled guilty in the United

States District Court for the District of Massachusetts to three

counts of tax fraud, in violation of 18 U.S.C. §§ 1341, 1343, and

1956. He was sentenced to a thirty-six month term of imprisonment.

On August 28, 2003, Goldings reported to Federal Medical Center

Devens, the correctional facility designated by the Bureau of

Prisons, to commence his sentence.

When Goldings entered federal custody, the BOP considered

prisoners for placement in community correction centers near the

end of their sentences, for up to six months, pursuant to a

longstanding practice.1 In addition, the BOP had a policy of

placing in CCCs some low-risk, non-violent federal offenders who

had been sentenced to short periods of imprisonment, including for

periods of more than six months, particularly if the sentencing

court so recommended.

1
Goldings' complaint alleged that the BOP routinely considered
"the vast majority" of inmates for placement in CCCs for periods in
excess of the last ten percent of their sentences. In their
memorandum filed in support of their motion to dismiss, the
defendants disagreed with Goldings' characterization but
acknowledged that at least some prisoners were placed in CCCs for
periods in excess of ten percent of their terms of imprisonment.
We accept Goldings' characterization as true, as we must in
reviewing the dismissal of a complaint pursuant to Rule 12(b)(6).
Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 29
(1st Cir. 2004).

-3-
 On December 13, 2002, about three-and-a-half months after

Goldings began serving his sentence, the Office of Legal Counsel of

the United States Department of Justice (OLC) forwarded to Deputy

Attorney General Larry D. Thompson an eight-page memorandum that

characterized as "unlawful" the BOP's decades-long practice of

placing certain offenders in CCCs to serve all or part of their

sentences. It stated, in part:

Your office has informed us that when a federal offender
whom the [BOP] deems to be low-risk and nonviolent
receives a short sentence of imprisonment, BOP often
places that offender in a community corrections center,
halfway house, or other form of "community confinement,"
rather than in prison. Your office has asked us to
advise you whether BOP has general authority, either upon
the recommendation of the sentencing judge or otherwise,
to place such an offender directly in community
confinement at the outset of his sentence or to transfer
him from prison to community confinement during the
course of his sentence.
We conclude below that the BOP has no such general
authority. As we explain, BOP's statutory authority to
implement sentences of imprisonment must be construed,
wherever possible, to comport with the legal requirements
that govern the federal courts' sentencing order.
Community confinement does not constitute imprisonment
for purposes of a sentencing order, and BOP lacks clear
general statutory authority to place in community
confinement an offender who has been sentenced to a term
of imprisonment. BOP's practice is therefore unlawful.

The OLC Memorandum also specifically concluded that the BOP lacked

statutory authority to transfer inmates to CCCs for more than ten

percent of their sentences, explaining that "[t]he authority

conferred under section 3624(c) to transfer a prisoner to a non-

prison site is clearly limited to a period 'not to exceed six

months, of the last 10 per centum of the time to be served,' and we

-4-
see no basis for disregarding this time limitation." (internal

citation omitted).

On December 16, 2002, the Deputy Attorney General adopted

the OLC Memorandum and forwarded it to the Director of the BOP,

with a memorandum that directed the BOP to "take all steps

necessary to ensure that its sentencing decisions are in full

compliance with the governing law" and to transfer to prison

facilities all offenders residing in CCCs who had more than 150

days remaining of their terms of imprisonment. The memorandum

reiterated that

while BOP does have limited statutory authority in 18
U.S.C. § 3624(c) to transfer an offender to a CCC prior
to his release so as to "afford the prisoner a reasonable
opportunity to adjust to and prepare for the prisoner's
re-entry into the community," there are firm restrictions
on such transfers. Specifically, the transfer may not
exceed the lesser of (i) the last ten percent of the
sentence imposed on the offender, i.e., the period of
time in which the offender was committed to the custody
of the BOP, or (ii) six months. The OLC opinion
concludes that there are no bases for disregarding the
time limitations.

Id. at 2 (emphasis in the original).

On December 20, 2002, the Assistant Directors for the

General Counsel and Chief Programs Division of the BOP issued a

memorandum that directed all BOP officers to implement immediately

a "revised procedure" based on the OLC Memorandum. In accordance

with that directive, Warden Winn informed the inmates of the FMC

Devens Camp that because of the OLC Memorandum, the BOP had changed

its procedures for designating inmates to CCCs. He explained that

-5-
all future pre-release CCC designations would be limited to the

last ten percent of an inmate's prison term.

After exhausting his administrative remedies, Goldings,

who was an attorney prior to his conviction, filed this action pro

se in the United States District Court for the District of

Massachusetts. His complaint alleged that under the BOP policy in

effect at the time of his sentencing, he would have been eligible

for transfer to a CCC as early as October 7, 2004, six months

before his statutory release date. In contrast, under the new

policy, his transfer is not possible until January 7, 2005, when he

will have only ten percent of his sentence left to serve. The

complaint alleged that the new BOP procedure was incorrect as a

matter of statutory interpretation, was established in violation of

the notice and comment requirements of the Administrative Procedure

Act (APA), and violated Goldings' rights under the Ex Post Facto

and Due Process Clauses of the United States Constitution.

Goldings sought a declaration that § 3621(b) authorizes the BOP to

transfer him to a CCC or halfway house for more than the last ten

percent of his sentence, if appropriate, under the BOP's pre-

December 2002 policy, and an injunction enjoining the defendants

from limiting his eligibility for placement in a CCC to the last

ten percent of his sentence based on the OLC Memorandum.

The defendants moved to dismiss Goldings' complaint

pursuant to Fed. R. Civ. P. 12(b)(6); on October 23, 2003, the

-6-
district court granted the motion. In a brief rescript, the court

stated that it agreed with the reasons expressed by two other

district courts in the District of Massachusetts in similar cases;

in particular, the court cited the conclusion that "the BOP's

revised policy merely corrected an erroneous interpretation of 18

U.S.C. § 3624(c)." The district court distinguished two other

cases decided in the district which "criticized application of the

BOP policy" on the ground that those cases "involved assignments to

a CCC at the beginning of a defendant's sentence . . . [and] were

governed by 18 U.S.C. § § 3621(b) and 3625." By contrast,

"Goldings' case . . . involves transfer to a CCC at the end of his

sentence, and is accordingly governed by 18 U.S.C. § 3624(c)."

Hence, the court found no constitutional or statutory violation and

rejected Goldings' alternative arguments concerning equitable

estoppel and reasonable expectations. This appeal followed.2

II.

Our review of the district court's decision granting the

defendants' Rule 12(b)(6) motion to dismiss is de novo. LaChapelle

v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998). At

issue in this case is the validity of the defendants'

interpretation of 18 U.S.C. § 3621(b) and § 3624(c), the statutory

2
The National Association of Criminal Defense Lawyers,
Criminal Justice Act Board, and Families Against Mandatory Minimums
Foundation participated in oral argument as amici on behalf of the
pro se plaintiff. We appreciate their assistance.

-7-
provisions that govern the BOP's authority to decide where a

federal offender must serve all or part of his or her sentence.3

In particular, we must consider whether the BOP has authority under

the statute to transfer a federal prisoner to a CCC prior to the

lesser of the last six months or ten percent of his or her

sentence.4

"We review de novo an agency's construction of a statute

that it administers, although subject to established principles of

deference." Griffiths v. INS, 243 F.3d 45, 49 (1st Cir. 2003). If

"the language of the statute is plain and admits of no more than

one meaning" or if the statute's legislative history "reveals an

unequivocal answer" as to the statute's meaning, "we do not look to

the interpretation that may be given to the statute by the agency

charged with its enforcement." Arnold v. United Parcel Serv.,

Inc., 136 F.3d 854, 858 (1st Cir. 1998) (internal quotation marks

omitted); see Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 842-43 (1984) ("If the intent of Congress is

clear, that is the end of the matter; for the court as well as the

agency, must give effect to the unambiguously expressed intent of

Congress.").

3
We reproduce the text of § 3621(a)-(b) and § 3624(c) in the
appendix.
4
The OLC Memorandum treated community confinement centers,
halfway houses, and other community confinement facilities as
equivalent for purposes of the issue in this case. We apply this
understanding here as well.

-8-
A. 18 U.S.C. § 3624(c)

"As in any case of statutory construction, our analysis

begins with the 'language of the statute.'" Hughes Aircraft Co. v.

Jacobson, 525 U.S. 432, 438 (1999). Section 3624(c) sets forth the

steps the BOP is required to take at the end of a term of

imprisonment to ease a prisoner back into society. It provides:

c) Pre-release custody. -– The Bureau of Prisons 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 the
prisoner a reasonable opportunity to adjust to and
prepare for the prisoner’s re-entry into the community.
The authority provided by this subsection may be used to
place a prisoner in home confinement.

18 U.S.C. § 3624(c). According to the defendants, § 3624(c)

authorizes the BOP to transfer inmates to CCCs for up to ten

percent of their terms of imprisonment but limits that authority to

a “reasonable part, not to exceed six months, of the last 10 per

centum of the term to be served.”

Goldings agrees that § 3624(c) contains limiting

language. However, he argues that the statute limits only the

BOP’s statutory obligation to “assure” that a prisoner spends a

reasonable part of the last ten percent of his term of imprisonment

under pre-release conditions. He contends that the mandatory

directive of § 3624(c) does not limit the discretionary authority

committed to the BOP under § 3621(b), pursuant to which the BOP

"may designate any available penal or correctional facility" as a

-9-
place of imprisonment and "may at any time . . . direct the

transfer of a prisoner from one penal or correctional facility to

another." The latter statute provides, in relevant part:

The Bureau of Prisons shall designate the place of the
prisoner’s imprisonment. The Bureau may designate any
available penal or correctional facility that meets
minimum standards of health and habitability . . . . The
Bureau may at any time . . . direct the transfer of a
prisoner from one penal or correctional facility to
another.

18 U.S.C. § 3621(b). Under the new policy, the defendants take the

view that a CCC is not a "place of imprisonment" for purposes of §

3621(b). According to the defendants, the discretion that §

3621(b) affords the BOP in determining a prisoner’s “place of

imprisonment” does not include discretion to place the prisoner in

a CCC, either at the outset or at the end of a prisoner’s term.

Therefore, the defendants claim that § 3624(c) alone authorizes

placement in a CCC, limiting that placement to the lesser of the

last ten percent or six months of the prisoner's term of

imprisonment.

The district court did not address the validity of the

defendants' interpretation of § 3621(b) because it concluded that

this provision was implicated only by assignments to a CCC at the

beginning of a prisoner's sentence. In the court's view,

"Goldings' case . . . involves transfer to a CCC at the end of his

sentence, and is accordingly governed by 18 U.S.C. § 3624(c)." We

disagree with the district court that Goldings' claim may be

-10-
resolved on the basis of § 3624(c) alone, without also considering

the applicability of § 3621(b) to CCC placements. There is no

language in § 3621(b) that limits the BOP's designation authority

to the prisoner's initial place of imprisonment. It expressly

provides that "[t]he [BOP] may at any time . . . direct the

transfer of a prisoner from one penal or correctional facility to

another." (emphasis added). Thus, on its face, § 3621(b) permits

the BOP to direct Goldings' transfer to a CCC prior to the last ten

percent of his prison term, unless, as the defendants argue, §

3621(b) does not apply to CCC placements at all because a CCC is

not a "place of imprisonment." In avoiding this argument of the

defendants, the district court essentially used the limiting

language of § 3624(c) to rewrite the unambiguous language of §

3621(b) so that "at any time" no longer means "at any time," but

rather "only for the lesser of the last six months or ten percent

of a prisoner's term of imprisonment." The significance of this

rewriting cannot be ignored. Indeed, the defendants do not argue

on appeal the district court's position that Goldings' case only

requires consideration of § 3624(c). Thus, we cannot avoid

addressing the relationship between § 3621(b) and § 3624(c).5

5
In dismissing Goldings' complaint, the district court relied
largely on the reasoning in Judge Lasker's order in Kennedy v.
Winn, Civ. No. 03-10568-MEL (D. Mass. July 9, 2003) (slip op.),
which held that a habeas corpus petitioner was not entitled to a
particular release date prior to the last ten percent of his term,
to which he had been assigned before the OLC Memorandum. However,
as the district court explained in Monahan v. Winn, 276 F. Supp. 2d
196, 211 n.11 (D. Mass. 2003), "[t]he Kennedy analysis . . .

-11-
 By its plain language, § 3624(c) provides that the BOP

"shall take steps" to "assure" that prisoners serve a reasonable

part of the last ten percent of their prison terms "under

conditions that afford the prisoner a reasonable opportunity to

adjust to and prepare for the prisoner's re-entry into the

community." This language imposes an affirmative obligation on the

BOP to take steps to facilitate a smooth re-entry for prisoners

into the outside world. It is true that this obligation is

qualified. Section 3624(c) does not mandate placement in a CCC

prior to release, and it requires the BOP to assure that a prisoner

spends the last part of his sentence under pre-release conditions

only if practicable. However, a qualified obligation differs from

a grant of discretion. Under § 3624(c), the BOP must ensure

placement under pre-release conditions except where no such

placement is practicable. As the Tenth Circuit has explained, §

3624(c) operates as "a legislative directive focusing on the

development of conditions to facilitate an inmate's adjustment to

free society, whatever the institution of pre-release confinement."

Prows v. Fed. Bureau of Prisons, 981 F.2d 466, 470 (10th Cir.

recognized that § 3624(c) did not require that the BOP do anything
until Kennedy met the 10 percent marker, and stopped there. Left
to consider is whether the BOP was allowed to move Kennedy into
community confinement under § 3621(b)." Unlike Kennedy, Goldings
does not claim that he is entitled to a particular release date
pursuant to § 3624(c); rather, he argues that the BOP's regular
practice of transferring prisoners to CCCs at the six-month mark of
their sentences was a proper exercise of discretion under § 3621(b)
that was unlawfully curtailed by the OLC Memorandum and resultant
policy change.

-12-
1992).6 The provision thus reflects Congress's intent to impose

upon the agency a duty to prepare prisoners for reentry into the

community, without tying the hands of administrators in deciding

where prisoners are to be placed. The BOP is not free to disregard

that duty. If it did so, judicial relief might be available. See

id. at 649 (suggesting that although prisoner did not have an

enforceable right under § 3624(c) to placement in a CCC, he might

have had a valid cause of action based on the claim that his

placement "constitute[d] a violation of a broader obligation to

provide at least some pre-release treatment conducive to successful

re-entry into the community, whatever the facility of

incarceration").

At the same time, we agree with the Tenth Circuit that §

3624(c)'s mandate "to facilitate the prisoner's post-release

adjustment through the establishment of some unspecified pre-

release conditions . . . accepts as a premise that the broader

statutory scheme concerning the Bureau's general placement

authority remains intact and effective." Id. at 469-70. Thus,

while § 3624(c) clearly limits the BOP's discretion not to consider

community confinement or other pre-release alternatives at the end

6
In Prows, a case decided under the old BOP policy, a federal
prisoner sought an injunction compelling his placement in a halfway
house or CCC on the theory that § 3624(c) mandates nonprison
placement for federal prisoners prior to their release. The Tenth
Circuit rejected the prisoner's claim, holding that § 3624(c) does
not confer on prisoners an enforceable right to any particular form
of pre-release custody.

-13-
of a prisoner's prison term, it does not prohibit the BOP from

doing so earlier pursuant to a different grant of discretionary

authority.7

B. 18 U.S.C. § 3621(b)

Having determined that § 3624(c) does not prohibit the

BOP from transferring prisoners to a CCC prior to the lesser of six

months or ten percent of the end of their prison terms, we must

next consider whether § 3621(b) confers upon the BOP discretionary

authority to execute such transfers. We begin by considering the

language of the statute:

(a) Commitment to the custody of the Bureau of Prisons.
– A person who has been sentenced to a term of
imprisonment . . . shall be committed to the custody of
the Bureau of Prisons. . . .
(b) Place of imprisonment. – The Bureau of Prisons shall
designate the place of the prisoner's imprisonment. The
Bureau may designate any available penal or correctional
facility that meets minimum standards of health and

7
The defendants suggest that a report of the House Committee
deliberations that took place during consideration of a 1990
amendment to § 3624(c) "supports the conclusion that "§ 3624(c)
reflects a strict limitation on the BOP's authority to designate
prisoners to community confinement centers." The report stated
that under § 3624(c), "the Bureau can only place an inmate in a
Community Correction Center for up to six months or for the last 10
percent of his or her sentence, whichever is shorter" and noted
that the bill that was before the House at that time would have
eliminated the provision's time limitations. 136 Cong. Rec. 27,587-
88 (1990). However, this report, compiled by a session of Congress
subsequent to the one that enacted § 3624(c) in 1984, provides no
meaningful insight into the legislative intent of the section's
original drafters. In any event, such legislative history carries
little weight where, as here, a different legislative intent is
clearly expressed by the statute's plain language. United States
v. Charles George Trucking Co., 823 F.3d 685, 688-89 (1st Cir.
1987).

-14-
 habitability established by the Bureau . . . that the
Bureau determines to be appropriate and suitable,
considering –
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence–
(A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility
as appropriate; and
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to section 994(a)(2) of
title 28. . . .
The Bureau may at any time, having regard for the same
matters, direct the transfer of a prisoner from one penal
or correctional facility to another.

Goldings argues that this section provides a broad grant of

authority to the BOP initially to designate, and subsequently to

transfer, a prisoner to "any available penal or correctional

facility." He further claims that a CCC is a "penal or

correctional facility" and that, therefore, the BOP has statutory

authority to transfer a petitioner to a CCC at any time during his

or her term of imprisonment. The defendants do not contend that a

community correction center is not a "correctional facility."8

Instead, they argue that a CCC is not a "place . . . of

imprisonment" as required by the first sentence of § 3621(b), and

8
The OLC Memorandum "assume[d] arguendo that a community
corrections center, halfway house, or other form of community
confinement may constitute a 'penal or correctional facility' under
the provisions of 18 U.S.C. § 3621(b)" and conceded that in an
earlier opinion the OLC had "declined to draw a distinction between
residential community facilities and secure facilities with respect
to BOP's authority [to contract with the private sector to operate
secure facilities]."

-15-
that the second sentence of the provision is limited by the first.

Thus, when designating the place where a prisoner will serve all or

part of his or her term of imprisonment, the BOP may choose from

among the subset of penal or correctional facilities that qualify

as places of imprisonment. In other words, a "place of

imprisonment" is a penal or correctional facility that is a place

of imprisonment.

The defendants' circular definition is unsupported by the

plain language of § 3621. Subsection 3621(a) directs "persons"

sentenced to serve a term of imprisonment "to the custody of the

Bureau of Prisons," thereby rendering them "prisoners" and hence

"imprisoned" for the purposes of § 3621(b). Pursuant to § 3621(a),

it is not the place of imprisonment that determines whether an

offender is imprisoned but the fact and nature of the offender's

sentence ("sentenced to a term of imprisonment") and the identity

of the custodian (the BOP). See United States v. Cintron-

Fernandez, 356 F.3d 340, 346 (1st Cir. 2004) (holding that offender

sentenced to a term of imprisonment and subsequently detained in

his home was not "imprisoned" because the BOP never assumed custody

of the offender as required by 18 U.S.C. § 3621); cf. Koray, 515

U.S. at 63-65 (recognizing that the relevant criteria for

determining whether a court-imposed period of pre-trial detention

in a CCC or other facility may be credited against a term of

-16-
imprisonment is not the type or place of confinement but whether

the defendant is in BOP custody).

The first sentence of § 3621(b) imposes a duty on the BOP

to place those prisoners who have been committed to the custody of

the BOP. It does not further define "place of imprisonment" and

certainly does not provide that the BOP may not place prisoners in

a CCC. The second sentence of this subsection gives content to the

first; it explains where prisoners may be placed and grants the BOP

discretionary authority to choose that place of imprisonment from

among "any" available penal or correctional institution. See,

e.g., United States v. King, 338 F.3d 794, 798 (7th Cir. 2003)

("Under 18 U.S.C. § 3621(b), the BOP is authorized to house a

prisoner . . . anywhere it deems appropriate.") (emphasis added);

Prows, 981 F.2d at 469 n.3 ("Under 18 U.S.C. § 3621(b), the Bureau

of Prisons . . . may direct confinement in any available facility

and may transfer a prisoner from one facility to another at any

time."). That broad discretion is limited only by the requirement

that the place of imprisonment be a "penal or correctional

facility" and that it "meet minimum standards of health and

habitability." See Cintron-Fernandez, 356 F.3d at 346 ("According

to 18 U.S.C. § 3621(b), the Bureau is supposed to choose a 'penal

or correctional facility' and determine that the facility meets

enumerated minimum standards of health and habitability.").

Congress could have, but did not, exclude any particular type of

-17-
penal or correctional facility from the BOP's designation or

transfer authority. Instead, it defined "place of imprisonment"

broadly but unambiguously, as "any penal or correctional facility"

that meets minimum standards of health and habitability. Hence,

the relevant question in considering whether the BOP has discretion

under § 3621(b) to transfer Goldings to a CCC is whether a CCC

qualifies as a "penal or correctional facility." Cf. id. at 346

n.6 (noting without deciding "the issue of whether [the prisoner's]

home could ever qualify as a 'penal or correctional facility' under

18 U.S.C. § 3621(b)"). If it does, then the text of the statute

dictates that it also qualifies as a "place of imprisonment."

Since a community corrections facility is clearly a corrections

facility (and, as noted, the OLC Memorandum did not suggest

otherwise), the BOP may place prisoners there prior to the lesser

of the last six months or ten percent of their terms of

imprisonment.9

9
Indeed, the OLC itself previously recognized that any
correctional facility, including a community correctional facility,
may be a place of imprisonment pursuant to the plain meaning of
§ 3621(b):
There is, moreover, no statutory basis in section
3621(b) for distinguishing between residential community
facilities and secure facilities. Because the plain
language of section 3621(b) allows BOP to designate "any
available penal or correctional facility," we are
unwilling to find a limitation on that designation
authority based on legislative history. Moreover, the
subsequent deletion of the definition of "facility"
further undermines the argument that Congress intended to
distinguish between residential community facilities and
other kinds of facilities.
Office of the Legal Counsel, United States Department of

-18-
 The defendants insist, however, that this reading of §

3621(b) "cannot be squared with the plain meaning of § 3624(c) and

elementary rules of statutory construction" because it would

"effectively render § 3624(c) a nullity." In other words, "[i]t

simply cannot be true that § 3624(c) limits placement in a CCC to

the shorter of six months or to the last 10 percent of the

prisoner's term, and also be true that § 3621(b) allows placement

in a CCC at any time during the prisoner's sentence." Defendants'

incredulity apparently reflects a refusal to recognize the

distinction between a qualified obligation imposed on the BOP and

a grant of discretionary authority to it. As we have already

noted, § 3624(c) limits the BOP's obligation to assure that a

prisoner spends the last part of his sentence under pre-release

conditions, whether in a CCC or elsewhere. It does not limit the

agency's discretionary authority to place a prisoner in a CCC at

any other time during the prisoner's sentence. Therefore, §

3621(b) and § 3624(c) do not, as defendants suggest, "authorize two

analytically separate but practically redundant systems for

administering community confinement." Moreover, § 3624(c) directs

the BOP to assure that a "prisoner serving a term of imprisonment

spend a reasonable part of that term [of imprisonment]" under pre-

release conditions, including (expressly) home detention and

Justice, Statutory Authority to Contract with the Private
Sector for Secure Facilities (Mar. 25, 1992), available at
http://www.usdoj.gov/olc/quinlan.15.htm (last visited Aug. 18,
2004).

-19-
(impliedly) community confinement. If, as both parties agree, a

CCC may be a place of imprisonment during the last ten percent of

a prisoner's term of imprisonment, it would be incongruous to

conclude that the same CCC may not be a place of imprisonment

during any portion of the first ninety percent of that term.

The defendants also find support for their interpretation

of § 3621(b) in 18 U.S.C. § 1791(d)(4), which prohibits the

provision or possession of contraband in prison and defines

"prison," for the purposes of that section, as "a Federal

correctional, detention, or penal facility." According to the

defendants, "[t]his definition suggests that a 'correctional

facility' and 'penal facility' are, first, synonymous, and, second,

the equivalent of a 'prison,' where inmates generally live in cells

behind bars and – unlike community confinement – are not free to

leave for various purposes." We do not understand the logic of

this argument. Section 1791(d) explicitly adopts a broad

definition of "prison" for the specific purposes of that section,

which includes all federal correctional, detention, and penal

facilities – just as § 3621(b) defines the different term, "place

of imprisonment," broadly to include those same correctional and

penal facilities. Nowhere does § 1791(d) define a "penal or

correctional facility" as a facility in which inmates are confined

to cells behind bars without ever being allowed to leave.

-20-
 Indeed, the defendants' interpretation of § 3621 is

inconsistent with the Sentencing Reform Act and the ordinary

meaning of modern-day imprisonment. The BOP is expressly

authorized to allow prisoners to leave their "place of

imprisonment" for limited periods of time to work or pursue

education in the community "while continuing in official detention

at the penal or correctional facility." 18 U.S.C. § 3622(c). This

kind of controlled exposure to the community is entirely consistent

with the meaning of imprisonment under the statute. See Byrd v.

Moore, 252 F. Supp. 2d 293, 301 (W.D.N.C. 2003) (While inmates of

CCCs "are able to leave under some limited circumstances as

outlined by 18 U.S.C. § 3622, they are not free to come and go as

they please. They are 'imprisoned.'"); see also Iacaboni v. United

States, 251 F. Supp. 2d 1015, 1029 (D. Mass. 2003) (“In a modern

penal system, it is the rare prisoner who is immured behind six-

foot-thick walls 365 days a year like some character out of a Dumas

romance.”).

The defendants further argue that § 3621(b) should be

construed in light of 18 U.S.C. § 3563(b)(11) of the Sentencing

Reform Act, which authorizes courts to sentence offenders to a term

of probation, a fine, or a term of imprisonment. They argue that

this section allows courts to require a defendant, as a condition

of probation, to "reside at, or participate in the program of, a

community corrections facility." 18 U.S.C. § 3563(b)(11). They

-21-
further note that placement in a CCC may be authorized as a

condition of a term of supervised release. See 18 U.S.C. §

3583(a). Because a sentence of probation is an alternative to, and

may not be imposed at the same time as, a sentence of imprisonment,

18 U.S.C. § 3561(a)(3), and because a term of supervised release

occurs after a term of imprisonment, the defendants argue that a

CCC cannot be a "place of imprisonment."

Again, the defendants' argument is unpersuasive. The

Sentencing Reform Act addresses the three types of sentences that

courts may impose; it does not limit the scope of the BOP's

authority to designate the place where an offender sentenced to a

term of imprisonment must serve that sentence. The fact that

residence at or participation in a program of a CCC may serve as a

condition of probation or supervised release for some offenders

does not mean that a CCC cannot be a place of imprisonment for

other offenders, based on the nature of their sentences and whether

they are subject to the control of the BOP. See Koray, 515 U.S. at

61, 63 (detention in a CCC subject to the control of the BOP may be

credited against a term of imprisonment under 18 U.S.C. § 3585,

whereas confinement in the same facility as a condition of bail may

not because "defendants who are 'detained' or 'sentenced' always

remain subject to the control of the Bureau").

Finally, we note that the OLC's interpretation of "place

of imprisonment" as exclusive of CCCs relied primarily on a line of

-22-
cases in which courts have held that confinement in a CCC is not

imprisonment as that term is used in 5C1.1 of the United States

Sentencing Guidelines, which governs the kinds of sentences that

may be imposed by courts for offenders within Zone C or D of the

Guidelines. Although we recently joined this line of authority, we

cautioned that "our interpretation of imprisonment does not

necessarily apply to provisions [of the Sentencing Guidelines]

other than § 5C1.1." Cintron-Fernandez, 356 F.3d at 347 & n.7

(explaining that definitions of terms in the Guidelines "are not

designed for general applicability"). Moreover, as the defendants

appear to recognize in their brief to this court, to the extent

that § 3621(b) conflicts with a section of the Sentencing

Guidelines, the Guidelines must yield. United States v. LaBonte,

520 U.S. 751, 757 (1997). Also, as we have recognized, the

Guidelines are binding only on the courts. They do not address the

BOP's use of its discretion as the custodian of federal prisoners

to designate the appropriate place of imprisonment. See Cintron-

Fernandez, 356 F.3d at 347 n.7 & 346 n.6 (holding that "in the

context of 5C1.1, the minimum half term of 'imprisonment' cannot be

satisfied by home detention or by community confinement" while

expressly reserving the question of whether the home can ever

qualify as a "penal or correctional facility" which the BOP may

designate as a "place of imprisonment" under 18 U.S.C. § 3621(b)).

-23-
 We end our consideration of the defendants' arguments

here. Under § 3621(b), the BOP has discretionary authority to

designate any available penal or correctional facility that meets

minimum standards of health and habitability as the place of a

prisoner's imprisonment, and to transfer a prisoner at any time to

such a facility. A community correction center is a correctional

facility and therefore may serve as a prisoner's place of

imprisonment. "When as now, the plain language of a statute

unambiguously reveals its meaning, and the revealed meaning is not

eccentric, courts need not consult other aids to statutory

construction." United States v. Meade, 175 F.3d 215, 219 (1st Cir.

1999). Because the intent of Congress is clear in its grant of

discretionary authority to the BOP to transfer a prisoner to any

available penal or correctional facility, we must give effect to

that intent. Chevron, 467 U.S. at 843. The defendants'

interpretation of § 3621(b) is contrary to the plain meaning of the

statute; it is not entitled to judicial deference.10

III.

For the foregoing reasons, we hold that 18 U.S.C. §

3621(b) authorizes the BOP to transfer Goldings to a CCC at any

10
Because the preceding analysis concludes that the BOP's new
policy is based on an erroneous interpretation of § 3621(b), we do
not reach the issues of whether the defendants' adoption of the
policy complied with the requirements of the APA and whether its
application to Goldings would violate his rights under the Due
Process and Ex Post Facto Clauses of the United States
Constitution.

-24-
time during his prison term. The BOP's discretionary authority

under § 3621(b) is not subject to the temporal limitations of 18

U.S.C. § 3624(c). We vacate the order of the district court

granting the defendants' motion to dismiss and remand for further

proceedings consistent with this opinion.

So ordered.

-25-
 APPENDIX

18 U.S.C. § 3621. Imprisonment of a convicted person

(a) Commitment to the custody of the Bureau of Prisons. – A person
who has been sentenced to a term of imprisonment pursuant to the
provisions of subchapter D of chapter 227 shall be committed to the
custody of the Bureau of Prisons until the expiration of the term
imposed, or until earlier released for satisfactory behavior
pursuant to the provisions of section 3624.
(b) Place of imprisonment. – The Bureau of Prisons shall designate
the place of the prisoner's imprisonment. The Bureau may designate
any available penal or correctional facility that meets minimum
standards of health and habitability established by the Bureau,
whether maintained by the Federal Government or otherwise and
whether within or without the judicial district in which the person
was convicted, that the Bureau determines to be appropriate and
suitable, considering –
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence –
(A) concerning the purposes for which the sentence to imprisonment
was determined to be warranted; or
(B) recommending a type of penal or correctional facility as
appropriate; and
(5) any pertinent policy statement issued by the Sentencing
Commission pursuant to section 994(a)(2) of title 28.

In designating the place of imprisonment or making transfers under
this subsection, there shall be no favoritism given to prisoners of
high social or economic status. The Bureau may at any time, having
regard for the same matters, direct the transfer of a prisoner from
one penal or correctional facility to another. The Bureau shall
make available appropriate substance abuse treatment for each
prisoner the Bureau determines has a treatable condition of
substance addiction or abuse.
. . .

18 U.S.C. § 3624. Release of a Prisoner

(c) Pre-release custody. -– The Bureau of Prisons 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 the prisoner a reasonable opportunity to adjust to

-26-
and prepare for the prisoner's re-entry into the community. The
authority provided by this subsection may be used to place a
prisoner in home confinement. The United States Probation System
shall, to the extent practicable, offer assistance to a prisoner
during such pre-release custody.
...

- Concurring Opinion Follows -

-27-
 HOWARD, Circuit Judge (concurring). Whether the Bureau

of Prisons' ("BOP") policy ought to be sustained presents a

difficult question. I join the court's treatment of this question,

and I write separately to emphasize a point that is the decisional

fulcrum for me. Beyond this, I also include an observation on the

scope of our holding.

We are not presented with a pure question of statutory

interpretation. Rather, we are required to decide whether BOP's

interpretation of the statute is a permissible reading of the text.

See Reno v. Koray, 515 U.S. 50, 62 (1995) (stating that BOP's

interpretation must be granted deference unless the "statute cannot

bear" its interpretation). If we are unsure of the correct

interpretation, we must defer to BOP's reading. Id. at 61. As

explained in the lead opinion, the critical question is whether the

phrase "the place of . . . imprisonment", as used in § 3621(b), can

be read to exclude placement in a Community Correction Center

("CCC"). Ante at 15-16. Since 2002, BOP has interpreted the

statute in this way. Id. at 4. Although I think that the

question is close, I agree that BOP's construction is, in the end,

not adequately supported.

A common type of CCC is a "halfway house" which

"provide[s] suitable residence, structured programs, job placement,

and counseling, while the inmates' activities are closely

monitored." See BOP Program Statement 7310.04 (1998). Prisoners

-28-
residing at most CCCs are permitted to leave the facility for

employment and certain other community activities. Id. If we

were, as the government urges, to simply apply the common

definition of "imprisonment" to decide whether it includes

placement in a CCC, the statute would be ambiguous. Imprisonment

can be defined as "constraint of a person either by force or by

such other coercion as restrains him within his limits against his

will." Webster's Third New Int'l Dictionary at 1137 (1993). Under

BOP's CCC program, prisoners are free to leave many CCC facilities

for certain parts of the day but not at other times. Thus, whether

prisoners residing in CCCs are "imprisoned" may conceivably be

determined, as the lead opinion says, by whether one is in the

custody of BOP, or may depend on the type of CCC involved, or may

even arguably depend on the time of day at which the question is

asked.11

The legislative history of § 3621(b) is also not

conclusive. The predecessor version of § 3621(b) provided that

prisoners could be assigned or transferred to CCCs. Congress

explicitly granted authority to the Attorney General (and via him

to BOP) to assign or transfer a prisoner to any "suitable . . .

11
Further confirming the difficulty of determining whether the
plain meaning of "imprisonment" encompasses community confinement,
courts addressing the question, in other areas of sentencing law,
have offered conflicting views on the question. See Iacaboni v.
United States, 251 F. Supp.2d 1015, 1030-35 (D. Mass. 2003)
(summarizing relevant caselaw).

-29-
facility" and defined facility to include "a residential community

treatment center." 18 U.S.C. § 4082 (replaced by 18 U.S.C. §

3621(b)); Pub. L. 89-176. See United States v. Tkabladze, No.

0301152, 2003 WL 22836502 at *3 (C.D. Cal. May 16, 2003) (stating

that "residential community treatment center" is the old term for

a CCC).

As part of the Sentencing Reform Act of 1984, Congress

replaced § 4082 with § 3621(b).12 The new provision changed the

term "facility" to "penal or correctional facility" and deleted the

"facility" definition which had expressly included CCCs. The

deletion of § 4082's "facility" definition from § 3621(b) could

suggest that Congress intended to redefine "facility" to exclude

CCCs. See Taylor v. United States, 495 U.S. 575, 590 (1990)

(stating that the omission of a pre-existing definition often

indicates that Congress rejected the definition).

On the other hand, the Senate Judiciary Committee Report

accompanying the Sentencing Reform Act strongly suggests otherwise.

See S. Rep. No. 225, reprinted in 1984 U.S.C.C.A.N. 3182, 3324.

The report emphasized that § 3621(b) was intended to "follow

existing law." Id. Indeed, the report expressly stated that §

12
The important change to existing law made by § 3621(b) is
that it transferred the custody of prisoners from the Attorney
General directly to BOP. Under § 4082, the Attorney General had
custody of federal prisoners but delegated this authority to BOP in
the first instance. See Barden v. Keohane, 921 F.2d 476, 481-82
(3d Cir. 1990).

-30-
3621(b) continued BOP's discretionary authority to designate a

suitable place of confinement for each prisoner and that the

proposed provision created only one new requirement (i.e., that BOP

must assign prisoners to facilities that meet minimum health and

habitability standards). Id. at 3324-25. Thus, the report

indicates that, after the enactment of § 3621(b), BOP retained its

pre-existing authority to assign or transfer prisoners to CCCs at

any time during their sentences.

The subsequent legislative history of § 3621(b), however,

suggests the exact opposite interpretation. Congress reconsidered

§ 3621(b) as part of the debate over the Crime Control Act of 1990.

The original version of this bill proposed amending § 3621(b) to

grant BOP the authority to assign or transfer prisoners to any

"suitable and appropriate institution, facility or program . . . ."

H.R. 5269, 101st Cong. § 1404 (1990). According to the House

Judiciary Committee Report accompanying H.R. 5269, under existing

law, "[T]he Bureau of Prisons c[ould] only place an inmate in a

Community Correction Center for up to six months or for the last 10

percent of his or her sentence, whichever is shorter." H.Rep. 101-

681, reprinted in 1990 U.S.C.C.A.N. 6472, 6546. The report

proceeded to explain that § 1404 broadened BOP's authority in this

regard:

Section 1404 restores the Bureau of
Prisons' previously existing authority to
designate an appropriate place for

-31-
 offenders to serve their sentences,
including Community Correction Centers . .
. . The Bureau of Prisons has developed
highly controlled programs in the
community that provide effective, punitive
sanctions for certain non-violent
offenders who at some point in their
prison sentence would not be appropriately
incarcerated in a traditional prison
setting . . . . New Federal drug and crime
laws and Federal sentencing guidelines
have resulted in a highly diverse prison
population . . . . Section 1404 provides
the Bureau of Prisons with the necessary
flexibility to manage this increasingly
diverse Federal inmate population.

1990 U.S.C.C.A.N at 6546. Thus, the authors of the 1990 Crime

Control Act interpreted the existing version of § 3621(b) as denying

BOP the ability to assign prisoners to CCCs, except during the final

portion of their sentence.

Section 1404 was stricken from H.R. 5269 on the floor of

the House of Representatives and did not become law. Representative

McCollum, the sponsor of the amendment striking the section,

explained that he opposed § 1404 because

the language of the bill as it is now out
here before us . . . giv[es] a whole lot
more authority to the Bureau of Prisons
than we really ought to . . . . The
language in the bill, without being
amended, would have effectively allowed
the . . . Bureau of Prisons to release
any prisoner for any length of time . . .
so they would not have had to serve a day
in prison.

-32-
136 Cong. Rec. 27587-88 (1990). The 1990 law, as enacted, left BOP's

authority to assign and transfer prisoners unchanged. Presumably for

at least some members of the 101st Congress, this meant that BOP could

not assign or transfer prisoners to CCCs, except at the end of their

terms.

This subsequent legislative history is, to say the least,

troubling and hard to ignore. On the other hand, there is reason to

heed the Supreme Court's frequent admonition that using subsequent

legislative history to interpret a statute is a hazardous endeavor.

See, e.g., Doe v. Chao -- U.S.--, 124 S.Ct. 1204, 1212 (2004);

Jones v. United States, 526 U.S. 227, 238 (1999); United States v.

Texas, 507 U.S. 529, 535 n.4 (1993); Pension Benefit Guaranty Corp.

v. LTV Corp., 496 U.S. 633, 650 (1990); but see Sullivan v.

Finklestein, 496 U.S. 617, 628-29 n.8 (1990); W. Eskridge & P.

Frickey, Law as Equilibrium, 108 Harv. L. Rev. 26, 65 (1994) (stating

that the Supreme Court's stated doctrine of declining to rely on

subsequent legislative history "cannot be taken at face value"). Were

§ 3621(b)'s text ambiguous and the contemporaneous legislative history

of § 3621(b)'s enactment unilluminating, the legislative history of

the 1990 Crime Control Act might well have persuaded me to conclude

that BOP's interpretation is entitled to deference. However, here,

where the traditionally preferred methods of interpreting a statute

through its plain language and the contemporaneous legislative history

-33-
support the court's conclusion, it is appropriate to look past this

inconsistent subsequent history.

Ultimately, I am convinced that the plain meaning of the

statute can be ascertained by applying the "fundamental principle of

statutory construction . . . that the meaning of a word (or phrase)

cannot be determined in isolation, but must be drawn from the context

in which it is used." See Koray, 515 U.S. at 56 (quoting Deal v.

United States, 508 U.S. 129, 132 (1993)). As the lead opinion

explains, "the place of . . . imprisonment" is a defined phrase when

§ 3621(b) is read as a whole. See ante at 17. The next sentence of

the statute states that "the place of . . . imprisonment" can be "any

penal or correctional facility." Id. This then is the definition of

"the place of . . . imprisonment." Thus, whether "the place of . .

. imprisonment" includes placement in a CCC hinges on whether a CCC

is a "penal or correctional facility." Id. at 18.

The government does not dispute that a CCC is such a

facility. See BOP Program Statement No. 7310.02 (1993) (stating that

CCCs meet § 3621(b)'s definition of a "penal or correctional

facility"); Office of the Legal Counsel, United States Department of

Justice, Bureau of Prisons Practice of Placing in Community

Confinement Certain Offenders Who Have Received Sentences of

Imprisonment (Dec. 13, 2002) (assuming, arguendo, that CCC is a penal

or correctional facility, but noting that a prior Office of the Legal

Counsel opinion had not addressed whether a CCC is a "place of

-34-
imprisonment"). Because BOP may assign a prisoner to "any penal or

correctional" facility, the text, read as a whole, supports the

court's interpretation.

This conclusion is buoyed by § 3621(b)'s contemporaneous

legislative history. There is evidence that § 3621(b) was not

intended to make substantive changes in BOP's pre-existing authority,

including its authority to assign or transfer prisoners to CCCs. See

supra at 30-31; see also Barden, 921 F.2d at 481. This history

comports with the plain meaning of the statute as outlined in the lead

opinion. Although the apparent change in the congressional view of

the scope of BOP's authority between 1984 and 1990 remains

unexplained, because the contemporaneous legislative history is

compelling and that history supports the most plausible reading of the

text, it ought to govern over contrary subsequent history. Thus,

while the 1990 legislative history demonstrates the close question

presented, it does not provide sufficient reason to cast doubt on the

lead opinion's conclusion.

But just because the BOP may assign prisoners to CCCs does

not mean that it must do so. As our holding states, BOP is authorized

to transfer prisoners to CCCs at any time during their prison terms.

Ante at 24-25. Consistent with the question presented by this appeal,

the lead opinion does not address whether § 3621(b) places any

constraints on the manner in which BOP may choose to exercise its

discretion to make CCC placements.

-35-
 This limited holding is also consistent with the text of §

3621(b). BOP may designate "any penal or correctional facility." 18

U.S.C. § 3621(b). In making assignments and transfers, Congress

suggested that BOP consider several factors including the resources

of the facility, the nature and circumstances of the offense, the

history and characteristics of the prisoner, any recommendations by

the sentencing court, and pertinent policy statements from the

Sentencing Commission. Id. These factors are non-exclusive and do

not bind or limit BOP's exercise of its discretion. See Thye v.

United States, 109 F.3d 127, 130 (2d Cir. 1997) ("Decisions to place

a convicted defendant within a particular treatment program or a

particular facility are decisions within the sole discretion of the

Bureau of Prisons."); Falcon v. Knowles, 807 F. Supp. 1531, 1533 (S.D.

Fla. 1992) ("[A]ny approach that puts the judicial branch in charge

of designating the place of confinement for a federal prisoner--no

matter how well justified on utilitarian grounds--collides with . .

. [BOP's] unfettered authority to decide where to house federal

prisoners;); see also Cohen v. United States, 151 F.3d 1338, 1343-44

(11th Cir. 1998) (discussing BOP's wide discretion to assign prisoners

to any correctional facility, despite statutory factors); Yi v.

Federal Bureau of Prisons, No. 03-CV-1493, 2003 WL 21321411 at *2

(E.D. Pa. 2003) (similar). The Senate report accompanying the

Sentencing Reform Act confirms the wide scope of BOP's discretion:

"The Committee, by listing factors for [BOP] to consider in

-36-
determining the appropriateness or suitability of any available

facility, does not intend to restrict or limit [BOP] on the exercise

of its existing discretion . . . ." 1984 U.S.C.C.A.N. 3325.13 Thus,

nothing in § 3621(b) requires BOP to give any particular level of

consideration to an assignment or transfer request.

Even if the statutory criteria for making assignments and

transfers could be read to guarantee some sort of individualized

treatment, it is apparent to me that BOP would still have the

authority to make a categorical rule excluding some or all CCC

placements, except as required for end of sentence placements governed

by § 3624(c).14 The Supreme Court recently affirmed BOP's categorical

rule making authority in a case concerning the permissibility of

another BOP regulation. Lopez v. Davis, 531 U.S. 230, 243-44 (2001).

"Even if a statutory scheme requires individualized determinations .

. . the decisionmaker has the authority to rely on rulemaking to

resolve certain issues of general applicability unless Congress

13
Indeed, absent compelling circumstances, federal courts
should not even review a BOP decision concerning a prisoner
placement. 18 U.S.C.C.A.N. at 3325 (citing Darsey v. United
States, 318 F Supp. 1346 (W.D. Mo. 1970).
14
The government contends that one reason that § 3621(b) should
be interpreted to prohibit CCC placements is that the Sentencing
Guidelines prohibit courts from granting CCC placements to
individuals sentenced to terms of imprisonment. U.S.S.G. § 5C.1.1.
It is, I agree, inappropriate for us to interpret the meaning of
§ 3621(b) to assure that it is consistent with subsequent rules
promulgated by the Sentencing Commission. Ante at 23. But BOP may
decide that, as a matter of sound policy, it should exercise its §
3621(b) discretion in harmony with the Guidelines and thus prohibit
inconsistent CCC placements.

-37-
clearly expresses an intent to withhold that authority." Id. (quoting

Am. Hosp. Assn. v. NLRB, 499 U.S. 606, 612 (1991)). BOP "is not

required continually to revisit 'issues that may be established fairly

and efficiently in a single rulemaking proceeding.'" Id. (quoting

Heckler v. Campbell, 461 U.S. 458, 467 (1983)).

-38-