Perez v. Lappin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JUAN M. PEREZ,

Petitioner,
v. Civil Action No. 09-0024 (JDB)
HARLEY G. LAPPIN,

Respondent.

MEMORANDUM OPINION

This matter is before the Court on respondent’s response to the February 6, 2009, order to

show cause and his motion to dismiss or transfer the petition for a writ of mandamus. Petitioner,

who is currently serving a federal sentence, originally came to the United States from Cuba

during the Mariel boatlift in 1980. In this action, he challenges the provisions under which his

custody classification and security level are set.1 For the reasons discussed below, the Court will

1
Woven throughout petitioner’s submissions is a constitutional challenge to a
Mariel Cuban’s indefinite detention pursuant to a final deportation order, as there is no
significant likelihood that his removal to Cuba can be effected in the reasonably foreseeable
future. Relying on the Supreme Court’s holdings in Clark v. Martinez, 543 U.S. 371 (2005), and
Zadvydas v. Davis, 533 U.S. 678 (2001), petitioner argues that he “and other Mariel Cubans and
non-Mariel-Cubans would be released into the community within six months because there is no
sufficiently strong justification for . . . indefinite civil detention.” Pet. ¶ 13; see id. ¶ 9.

As is discussed in this memorandum opinion, petitioner currently is serving a criminal
sentence imposed by the United States District Court for the District of New Jersey. At this time,
then, his detention pertains neither to his status as a Mariel Cuban nor to the existence of a
deportation order. It is uncertain what exactly will happen when his current sentence is
completed. His current detention is not indefinite, and, therefore, this constitutional challenge is
(continued...)

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grant respondent’s motion and dismiss this action.

I. BACKGROUND

A. Long-Term Detainees in Federal Custody

The Federal Bureau of Prisons (“BOP”) has in its custody certain long-term detainees

who are no longer serving a sentence but whose “detention is indeterminate [because] they will

not, in all probability, be repatriated to their home countr[ies].” P.S. 5100.08, Inmate Security

Designation and Custody Classification (9/12/2006) (“P.S. 5100.08”), ch. 3, p. 9. The term

“long term detainee” means:

A non-U.S. citizen (alien) who has:

• finished serving a local, state, or federal sentence;
• completed immigration proceedings that have resulted in an
order of deportation, exclusion, or other means of removal by
either the Executive Office for Immigration Review (EOIR),
or the Bureau of Immigration and Customs Enforcement
(ICE), formerly the Immigration and Naturalization Service
(INS); and[]
• cannot be removed from the country for various reasons.

Id., ch. 2, pp. 2-3. These long-term detainees include “Mariel Cubans . . . who entered the United

States during the Mariel boatlift between April 15, 1980 and October 31, 1980[.]” Id., ch. 3, p. 9.

Petitioner alleges that he “is a native and citizen of Cuba who came to the United States in June

of 1980 in the Mariel-Cuba Boatlift.” Pet. ¶ 5.

B. Petitioner’s Criminal History

Petitioner alleges that “[h]e was paroled [on] May 22, 1982[,] and has been in that status

since then.” Pet. ¶ 5. He further alleges that he “is serving a 65 month[] federal sentence

1
(...continued)
premature.

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imposed for violating Title 18 U.S.C.A. §§ 1341 and [134]2, imposed by the United States

District Court for the District of New Jersey.” Id. ¶ 3.

Drawing from a prior judicial decision, respondent submits a fuller picture of petitioner’s

criminal history and current status:

Approximately 125,000 Cubans eventually came to the United
States in the [Mariel] Boatlift. Since nearly all of the Mariel Cubans
arrived without appropriate entry documentation, most were detained
at the border pending a status determination (admission or exclusion).
Pending this determination, the vast majority of arrivals were released
on immigration parole as excludable aliens, pursuant to 8 U.S.C. §
1182(d)(5). Petitioner was one of these parolees.

Since his arrival in this country, Petitioner has faced criminal
charges and been convicted for the offenses of theft, attempted
forgery, receiving stolen property (two occasions), grand theft, credit
card fraud (three occasions), possession of a forged driver’s license,
grand larceny (four counts), indecent exposure, unnatural and
lascivious acts, fraudulent checks, burglary, and petit theft. On
September 17, 1980, an Immigration Judge . . . denied Petitioner’s
asylum petition and ordered him excluded and deported under Section
212(a)(9) and (20) of the Immigration and Nationality Act . . .. The
order was affirmed by the Board of Immigration Appeals on October
30, 1980. Subsequently, Perez was paroled into the United States
and, between 1982 and 2003, he lived in Massachusetts, Maine,
Florida, New York, Texas, New Jersey, and Missouri. After serving
his most recent criminal sentence at the Federal Correctional
Institution at Loretto, Pennsylvania, Perez was released to ICE
custody on July 18, 2003, pending a review of his parole status.
Petitioner was denied parole in his most recent review by a decision
dated September 29, 2004; the Board found in light of [his]
propensity to engage in recidivist criminal behavior . . . [his]
institutional misconduct, and [his] failure to assume responsibility for
[his] past criminal actions, it is not clearly evident that [Perez is]
unlikely to remain non-violent, and or unlikely to pose a threat to the
community [if released].

Defendant’s Response to Order to Show Cause and in Support of his Motion to Dismiss, or in the

Alternative, to Transfer (“Resp’t Opp’n”), Ex. 1 (Memorandum and Order, Perez v. Assoc.

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Comm’r of Enforcement for the Bureau of Immigration & Customs Enforcement, Civ. No. 04-

2118 (M.D. Pa. filed December 4, 2004) (internal citations and quotation marks omitted)

(brackets in original)) at 1-2.2 The Middle District of Pennsylvania found that, notwithstanding

the decades petitioner had spent in the United States, he is an excludable alien who is treated as if

he were detained at the border without having entered this country effectively. Id., Ex. 1 at 3; see

also id., Ex. 2-3 (September 17, 1980 Decision of the Immigration Judge, File No. A-23 227 092,

and October 30, 1980 Board of Immigration Appeals Order, respectively).

It appears that petitioner was released at some point after this December 4, 2004 decision,

and in 2005 he committed another criminal offense. See Resp’t Opp’n., Ex. 6 (March 17, 2006

Judgment in a Criminal Case, Case No. 2:05cr409-01) at 1. The record reflects that petitioner

pled guilty to one count of fraud by wire, radio or television, see 18 U.S.C. §§ 1342 and 1343,

and that he currently is serving a 41-month sentence imposed by the United States District Court

for the District of New Jersey on March 17, 2006. Id. at 1-2. According to the BOP’s Inmate

Locator (http://www.bop.gov/iloc2/LocateInmate.jsp), he is to be released in February 2010.3

2
The Court presumes that any reference to violence in petitioner’s criminal history
is a reference to a 1979 robbery conviction in Cuba for which he was sentenced to 12 years’
imprisonment, a term he was serving immediately prior to his arrival in the United States. See
Resp’t Opp’n, Ex. 2 (September 17, 1980 Decision of the Immigration Judge, File No. A-23 227
092) at 2; see also Gov’t Resp. to Pet. for Writ of Habeas Corpus, Perez v. Assoc. Comm’r of
Enforcement for the Bureau of Immigration & Customs Enforcement, Civ. No. 04-2118 (M.D.
Pa. filed Oct. 21, 2004).
3
The record does not explain the discrepancy in the duration of petitioner’s current
sentence. If petitioner were to remain incarcerated from March 2006 through February 2010, he
will have served approximately 47 months. If, as respondent represents, petitioner were serving
a 41-month sentence beginning in March 2006, he would have completed the full sentence by
August 2009. If, as petitioner alleges, he were serving a 65-month sentence, he would complete
the full sentence by August 2011. In any event, all agree that petitioner is still serving that
(continued...)

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But petitioner still remains subject to the 1980 deportation order. Resp’t Opp’n, Ex. 2-3; see id.,

Ex. 4 (Request for Administrative Remedy) at 2 (“I am already been deported [sic] since

September 17, 1980 and renewed on February 2005[.]”) .

C. Petitioner’s Custody Classification and Security Level

Custody classification is “[t]he review process to assign a custody level based on an

inmate’s criminal history, instant offense, and institutional adjustment.” P.S. 5100.08, ch. 2, p.

2; see id., ch. 6, p. 1. “A custody level (i.e., COMMUNITY, OUT, IN, and MAXIMUM)

dictates the degree of staff supervision required for an individual inmate.” Id., ch. 2, p. 2 (capital

letters in original). The custody level “IN” is “[t]he second highest custody level assigned to an

inmate,” and “[i]nmates with IN custody are not eligible for work details or programs outside the

institution’s secure perimeter.” Id.

The term “security level” describes:

the structural variables and inmate-to-staff ratio provided at the
various types of [BOP] institutions . . . [and] identifies the institution
type required to house inmates based on their histories, institutional
adjustment, and Public Safety Factors as well as the physical security
of the institution to include mobile patrols, gun towers, perimeter
barriers, housing, detection devices, inmate-to-staff ratio, and internal
security.

P.S. 5100.08, ch. 2, p. 5. “[BOP] institutions are classified into one of five security levels:

MINIMUM, LOW, MEDIUM, HIGH, and ADMINISTRATIVE based on the level of

security and staff supervision the institution is able to provide.” Id., ch. 1, p. 1 (capital letters and

bold type in original).

3
(...continued)
sentence.

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 A public safety factor (“PSF”) is applied to an inmate “who [is] not appropriate for

placement at an institution which would permit inmate access to the community . . ..” P.S.

5100.08, ch. 2, p. 4. It reflects “relevant factual information regarding the inmate’s current

offense, sentence, criminal history or institutional behaviors that require[] additional security

measures . . . to ensure the safety and protection of the public,” id., ch. 5, p. 7, and is among the

factors “used to determine the inmate’s security level,” id., ch. 4, p. 5. The PSF “overrides

security point scores to ensure [that] the appropriate security level is assigned to an inmate, based

on his . . . demonstrated current or prior behavior.” Id., ch. 2, p. 4.

Petitioner in custody at the Big Spring Correctional Center, a facility operated by a

private corporation under contract with the BOP. Pet. ¶ 1. He states that the BOP has assigned

him a PSF to reflect his status as a deportable alien (Code H). See id. ¶ 11; see also P.S.

5100.08, ch. 3, pp. 9-10; id., ch. 4, p. 13. The BOP applies Code H to all long-term detainees

and,“[w]hen applied, the . . . long-term detainee[s] shall be housed in at least a Low security

level institution.” P.S. 5100.08, ch. 5, p. 9.

In this action, petitioner alleges that the PSF assigned to him renders him ineligible for a

reduction in sentence upon his successful completion of a substance abuse treatment program, for

release from custody, or for placement in a prison camp or community correctional facility. Pet.

¶¶ 4, 9, 11; see 18 U.S.C. §§ 3621(e)(2)(B), 3622 and 3624(c). He asserts that P.S. 5100.08 is

unconstitutional with respect to its treatment of long-term detainees on two grounds: (1) it

impermissibly is based on a Mariel Cuban’s alienage and thus offends due process, and (2) it

denies him equal protection of the law. See Pet. ¶¶ 12-13. He demands a declaratory judgment

that the offending provisions of P.S. 5100.08 “as applied to Mariel-Cubans [who are] long-term

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detainee[s] violate the Due Process and Equal Protection Clause[s] of the United States

Constitution.” Id. at 9-10.

II. DISCUSSION4

A. Dismissal Under Rule 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]’” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

A motion under Rule 12(b)(6) does not test a plaintiff’s likelihood of success on the merits;

rather, it tests whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S.

232, 236 (1974). “When ruling on a defendant’s motion to dismiss, a judge must accept as true

all of the factual allegations contained in the complaint.” Atherton v. District of Columbia Office

of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 94

(2007)) (other citations omitted). Although “detailed factual allegations” are not required to

withstand a Rule 12(b)(6) motion, a plaintiff must offer “more than labels and conclusions” to

4
For purposes of this Memorandum Opinion, the Court will presume without
deciding that petitioner has standing to bring his claims, that service of process has been effected
on the respondent, and that petitioner exhausted his available administrative remedies prior to
filing this action. Furthermore, the Court summarily disposes of petitioner’s claim, see Pet. ¶¶ 1,
7, that the United Nations Standard Minimum Rules for the Treatment of Prisoners (“SMR”) is a
valid basis for this court’s jurisdiction. See Serra v. Lappin, No. 07-1589, 2008 WL 929525, at
*7 (N.D. Cal. Apr. 3, 2008) (concluding that plaintiffs’ claim under the SMR “is not legally
cognizable” because it is “a guidance document prepared by an international organization . . .[,]
not laws of the United States, [or] . . . a United States treaty binding on this Court”). Lastly,
because the Court concludes that this action must be dismissed, respondent’s motion to transfer
this action to the United States District Court for the Northern District of Texas will be denied as
moot.

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provide “grounds” of “entitle[ment] to relief.” Twombly, 550 U.S. at 555. Or as the Supreme

Court more recently stated, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, __ U.S. __, __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A

claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw

a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949

(quoting Twombly, 550 U.S. at 556). A complaint alleging facts which are “‘merely consistent

with’ a defendant’s liability, . . . ‘stops short of the line between possibility and plausibility of

‘entitlement to relief.’” Id. (quoting Twombly 550 U.S. at 557) (brackets omitted).

1. Petitioner Fails to State a Due Process Claim

Respondent argues that petitioner fails to state a due process claim with respect to his

custody and security levels, see Resp’t Opp’n at 16-17, which place petitioner in custody at a low

security institution. The Court concurs.

“The [D]ue [P]rocess [C]lause is triggered when the government deprives an individual

of life, property or liberty.” Phillips v. Smith, No. 05-0178, 2006 WL 463249, at *3 (D.D.C. Feb.

24, 2006) (citing Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989)). “[A]

deprivation in prison implicates a liberty interest protected by the Due Process Clause only when

it imposes an ‘atypical and significant hardship’ on an inmate in relation to the most restrictive

confinement conditions that prison officials, exercising their administrative authority to ensure

institutional safety and good order, routinely impose on inmates serving similar sentences.”

Hatch v. District of Columbia, 184 F.3d 846, 856 (D.C. Cir. 1999) (quoting Sandin v. Conner,

515 U.S. 472, 484 (1995)).

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 Decisions about where an inmate is confined and his security classification are left to

prison managers. See 18 U.S.C. § 4001(b) (vesting the authority to control and manage federal

correctional institutions and to classify inmates in the Attorney General). It is settled that an

inmate has no liberty interest in his designation to a particular correctional facility. See Olim v.

Wakinekona, 461 U.S. 238, 245 (1983) (“[A]n interstate prison transfer, including one from

Hawaii to California, does not deprive an inmate of any liberty interest protected by the Due

Process Clause in and of itself.”); Spuck v. Ridge, No. 09-1397, 2009 WL 3182922, at *2 (3d Cir.

Oct. 6, 2009) (per curiam) (“[A]n inmate does not have an inherent constitutional right to

determine the place of his confinement, nor does he have a state-created liberty interest which

allows him to be incarcerated at an institution of his choosing.”); Banks v. York, 515 F. Supp. 2d

89, 109 (D.D.C. 2007) (concluding that a plaintiff detained at the D.C. Jail was not entitled to

placement at another facility under less restrictive conditions because “an inmate has no right to a

particular place of confinement or level of security”); James v. Reno, 39 F. Supp. 2d 37, 40

(D.D.C. 1999) (“Plaintiff has no liberty interest . . . in his place of confinement.”), aff’d, No.

99-5081, 1999 WL 615084 (D.C. Cir. July 2, 1999) (per curiam).

Nor does an inmate have a liberty interest in his security level or custody classification.

See Kossie v. Crain, No. 09-40476, 2009 WL 3816906, at *2 (5th Cir. Nov. 16, 2009) (per

curiam) (“[T]his court has held that a prisoner does not have a protected liberty interest in his

custody classification.”); Andreozzi v. Dep’t of Defense, No. 03-5304, 2004 WL 1083036, at *1

(D.C. Cir. May 13, 2004) (per curiam) (rejecting due process claim that alleged improper custody

classification under United States Disciplinary Barracks’ point-based classification system);

Banks v. York, 515 F. Supp. 2d at 109; James v. Reno, 39 F. Supp. 2d at 39 (“Plaintiff has no

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liberty interest in his security classification . . ..”); Meyer v. Reno, 911 F. Supp. 11, 16 (D.D.C.

1996) (“There is no protected liberty interest in obtaining or maintaining a particular security

classification.”); Pryor-El v. Kelly, 892 F. Supp. 261, 274 (D.D.C. 1995) (“[P]risoners generally

do not have a liberty interest in being housed in a prison at a particular security level.”).

Finally, “the assignment of a deportable alien PSF, in itself, does not implicate the Due

Process Clause.” Becerra v. Miner, 248 Fed. Appx. 368, 370 (3d Cir. Sept. 19, 2007) (per

curiam). “Being classified with a PSF of ‘deportable alien’ and its resulting consequences of

disqualification for certain programs, as with any other security classification, is not outside what

a prisoner ‘may reasonably expect to encounter as a result of his or her conviction in accordance

with due process of law.’” Id. at 370 (quoting Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir.

2002) (other citations omitted).

Unless an inmate is subjected to extraordinary treatment, the effects of prison officials’

day-to-day decisions on inmates are merely consequences of confinement for having committed a

crime. See Franklin v. District of Columbia, 163 F.3d 625, 635 (D.C. Cir. 1998). In this case,

petitioner does not show that the PSF assigned to him has resulted in an “atypical and significant

hardship on [him] in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.

His due process claim therefore must fail.

2. Petitioner Fails to State an Equal Protection Claim

Equal protection principles “essentially direct ‘that all persons similarly situated should

be treated alike.’” Brandon v. Dist. of Columbia Bd. of Parole, 823 F.2d 644, 650 (D.C. Cir.

1987) (citing Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). “The threshold

inquiry in evaluating an equal protection claim is . . . ‘to determine whether a person is similarly

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situated to those persons who allegedly received favorable treatment.’” Women Prisoners of

Dist. of Columbia Dep’t of Corrections v. Dist. of Columbia, 93 F.3d 910, 924 (D.C. Cir.1996)

(quoting United States v. Whiton, 48 F.3d 356, 358 (8th Cir. 1995)), cert. denied, 520 U.S. 1196

(1997).

At the outset, the Court notes that petitioner’s current custody comes about not as a result

of his status as an alien. Rather, he is serving a sentence imposed by a federal district court upon

his entry of a guilty plea to one count of fraud. The regulations he challenges here “classify

prisoners as those who are subject to custodial considerations (including those who have PSF

status) and those who are not, not on the basis of alienage.” Suarez v. Samuels, No. 07-1888,

2007 WL 2462628, at *2 (D.N.J. Aug. 27, 2007). Petitioner, then, fails to state an equal

protection claim. See McLean v. Crabtree, 173 F.3d 1176, 1184 (9th Cir. 1999) (holding that

denial of request for sentence reduction under 18 U.S.C. § 3621(e)(2)(B) on the basis of

immigration detainer does not violate Equal Protection Clause ), cert. denied, 528 U.S. 1086

(2000); Gonzalez-Radiya v. United States, Nos. 06-CV-187-TUC-FRZ, 04-CR-254-TUC-FR,

2006 WL 1050284, at *1 (D. Ariz. Apr. 20, 2006) (rejecting argument that deportable alien

prisoner’s right to equal protection is violated by the fact that he, unlike his United States citizen

counterparts, is ineligible for a one-year sentence reduction for attending a drug treatment

program and for early release to a half-way house).

3. Petitioner Fails to State a Claim Under the Administrative Procedure Act

Generally, under the Administrative Procedure Act (“APA”), “[a] person suffering legal

wrong because of agency action, or adversely affected or aggrieved by agency action within the

meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Petitioner

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appears to seek judicial review of the BOP’s decision to promulgate and apply regulations in

such a way that he, as a Mariel Cuban, is ineligible for consideration under 18 U.S.C. §§

3621(e)(2)(B), 3622 and 3624(c). See Pet. ¶¶ 1, 11-12. In so doing, petitioner alleges “that the

BOP has exceeded its authority and abused its discretion.” Id. ¶ 12.

“The control and management of Federal penal and correctional institutions . . . shall be

vested in the Attorney General, who shall promulgate rules for the government thereof.” 18

U.S.C. § 4001(b). The BOP, under the Attorney General’s direction, see 18 U.S.C. § 4042(a),

“shall designate the place of the prisoner’s imprisonment . . . [and] may designate any available

penal or correctional facility that meets minimum standards of health and habitability established

by the [BOP], whether maintained by the Federal Government or otherwise and whether within

or without the judicial district in which the person was convicted, that the [BOP] determines to

be appropriate and suitable[.]” 18 U.S.C. § 3621(b); see 18 U.S.C. § 4081(directing the BOP to

classify prisoners “according to the nature of the offenses committed, the character and mental

condition of the prisoners, and such other factors as should be considered in providing an

individualized system of discipline, care, and treatment of the persons committed to such

institutions”). Petitioner relies on the APA as a basis for his claim, yet he articulates no basis for

the proposition that the BOP lacks authority to promulgate regulations with respect to long-term

detainees in its custody or to determine security and custody levels for those detainees.

Moreover, by statute, the BOP’s decision to assign a PSF is not subject to judicial review

under the APA. 18 U.S.C. § 3625 (“The provisions of . . . 701 through 706 of title 5, United

States Code, do not apply to the making of any determination, decision, or order under [18

U.S.C. §§ 3621-26].”); see Burnam v. Marberry, No. 07-0097, 2008 WL 4190785, at *7 (W.D.

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Pa. Sept. 10, 2008) (concluding, alternatively, that the assignment of a PSF “was made pursuant

to [the BOP’s] discretionary responsibilities regarding the designation of an inmate’s place of

imprisonment, and any subsequent transfers, bestowed on it under 18 U.S.C. § 3621(b),” and

thus is not “subject to judicial review under Subsection 706(2)(A) of the APA”), aff’d, 313 Fed.

Appx. 455 (3d Cir. 2009); Jones v. Bureau of Prisons, Nos. 1:04-CV-35, 1:04-CV-392, 2007 WL

965746, at *3 (E.D. Tex. Mar. 27, 2007) (concluding that a federal prisoner failed to state an

APA claim regarding his custody classification because, “[p]ursuant to 18 U.S.C. § 3625, the

BOP’s substantive decision regarding a prisoner's designation is not reviewable under the

[APA]”); see also Enigwe v. Bureau of Prisons, No. 06-457, 2006 WL 3791379, at *2-3 (D.D.C.

Dec. 22, 2006) (concluding that, absent “a claim of constitutional violation, abuse of discretion,

agency action contrary to law, or agency action exceeding the scope of its authority, the Court is

precluded by [18 U.S.C. § 3625] from reviewing BOP’s classification decision”).

To the extent that petitioner seeks his immediate release from incarceration, or at least a

shorter stay in custody, he must bring his claim in a petition for a writ of habeas corpus. See

Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973). In Davis v. Fed. Bureau of Prisons, 517 F.

Supp. 2d 460 (D.D.C. 2007), a federal inmate alleged that his completion of a drug treatment

program at a contract facility “was the equivalent of participation in the first step of BOP’s drug

abuse treatment program, that BOP should place him into the second step, and that upon

completion of the BOP program BOP should consider reducing his sentence.” Id. at 461. The

district court dismissed the case for lack of subject matter jurisdiction because 18 U.S.C. § 3625

“excludes APA review of BOP determinations regarding placement of inmates in substance

abuse treatment.” Id. On appeal, the D.C. Circuit affirmed the dismissal on an alternate ground:

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“a federal prisoner must bring his claim in habeas if success would have a ‘probabilistic’ effect

on the duration of his custody.” Davis v. Fed. Bureau of Prisons, No. 08-5053, 2009 WL

1791872, at *1 (D.C. Cir. June 5, 2009) (per curiam) (quoting Razzoli v. Fed. Bureau of Prisons,

230 F.3d 371, 375 (D.C. Cir. 2000)). Here, petitioner’s success on the merits of his claims

potentially could advance his release from custody, if he were eligible for a reduction in sentence,

or for placement in a community correctional facility, or for release on an alternative basis. His

remedy, then, lies through a habeas action, not through a claim under the APA.

B. Petitioner Is Not Entitled to Mandamus Relief

Mandamus is a drastic remedy to be invoked only in extraordinary situations, see

Chatman-Bey v. Thornburgh, 864 F.2d 804, 806 n.2 (D.C. Cir. 1988), and it is granted only when

essential to the interests of justice, see Starnes v. McGuire, 512 F.2d 918, 929 (D.C. Cir. 1974).

Mandamus is proper only if “(1) the plaintiff has a clear right to relief; (2) the defendant has a

clear duty to act; and (3) there is no other adequate remedy available to plaintiff.” Council of and

for the Blind of Delaware County Valley v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en

banc); see also Northern States Power Co. v. United States Dep’t of Energy, 128 F.3d 754, 758

(D.C. Cir. 1997). The party seeking mandamus has the “burden of showing that its right to

issuance of the writ is ‘clear and indisputable.’” Gulfstream Aerospace Corp. v. Mayacamas

Corp., 485 U.S. 271, 289 (1988) (citing Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384

(1953)). Where the action a petitioner seeks to compel is discretionary, one has no clear right to

relief and mandamus therefore is not an appropriate remedy. See, e.g., Heckler v. Ringer, 466

U.S. 602, 616 (1984).

Petitioner cannot meet his heavy burden for mandamus relief. For the reasons discussed

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above, BOP’s decisions with respect to inmate security and custody levels are discretionary.

Petitioner thus has no right to the relief he demands, and the BOP is under no obligation to act as

petitioner demands. Mandamus relief is therefore not available.

III. CONCLUSION

Accordingly, the Court will discharge the order to show cause and will grant respondent’s

motion to dismiss. A separate order accompanies this memorandum opinion.

/s/
JOHN D. BATES
United States District Judge
DATE: November 30, 2009

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