IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 11, 2009
No. 08-10658
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRICK DIGGS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Cedrick Diggs challenges his scheduled restitution payments under the In-
mate Financial Responsibility Program (“IFRP”). Because the district court
lacked subject matter jurisdiction, we vacate and remand for dismissal.
No. 08-10658
I.
Diggs was sentenced to imprisonment and restitution. The judgment
stated that restitution was payable immediately and that upon the commence-
ment of any term of supervised release, any unpaid part of the restitution should
be made at the rate of at least $100 a month. Diggs voluntarily enrolled in the
IFRP and signed an inmate financial contract agreeing to pay $70 a month in
restitution.
Five months later, Diggs filed a request for an administrative remedy at
the Missouri federal prison where he is currently serving his sentence. The re-
quest asked for temporary exemption from his IFRP obligations, but the request
was denied. Diggs did not exhaust his administrative appeals, but instead filed,
in the sentencing court, a motion, under 18 U.S.C. § 3664(k), to have his IFRP
payments suspended or reduced from $70 a month to $25 quarterly.
The government responded that Diggs had failed to exhaust his adminis-
trative remedies on the modification request and that, to the extent he was chal-
lenging the manner in which the Bureau of Prisons (“BOP”) was administering
the IFRP, he should have proceeded under 28 U.S.C. § 2241 in the district of his
confinement. The district court denied relief.
II.
Diggs argues that his payments should be lowered because of his new fi-
nancial circumstances, the details of which are not pertinent to the jurisdictional
issue we address. Diggs filed his claim under 18 U.S.C. § 3664(k), which states,
A restitution order shall provide that the defendant shall notify the
court and the Attorney General of any material change in the de-
fendant’s economic circumstances that might affect the defendant’s
ability to pay restitution. . . . The Attorney General shall certify to
the court that the victim or victims owed restitution by the defen-
dant have been notified of the change in circumstances. Upon re-
ceipt of the notification, the court may, on its own motion, or the
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No. 08-10658
motion of any party, including the victim, adjust the payment sched-
ule, or require immediate payment in full, as the interests of justice
require.
The government is correct that Diggs erred in filing under § 3664(k). He
is not challenging a payment schedule made by the court, but instead is opposing
his scheduled payment amount under the IFRP. That program is administered
by the BOP, and a challenge to BOP administrative programs must be filed un-
der 28 U.S.C. § 2241 and in the district of incarceration. See United States v.
Lott, 227 F. App’x 414 (5th Cir. 2007). All other circuits to look at this issue
agree that prisoners challenging their IFRP payment plans must do so under
§ 2241.1
Diggs’s quest to suspend his payments must also be brought under § 2241.
Were he challenging a court-ordered repayment schedule (such as the $100 a
month he must pay during supervised release), suit could be brought under
§ 3664(k). Likewise, were he paying part of the restitution on his own schedule
because of the court’s requirement that repayment be immediate, he could seek
relief under § 3664(k). Here, however, he is again disputing payments under the
IFRP, requesting that payments be suspended under that program; such a
matter must be brought under § 2241. He voluntarily signed a contract under
the IFRP, and any effort to change the terms of that contract must be made
through § 2241.
In summary, challenges to BOP programs must be brought under § 2241
after all administrative remedies have been exhausted. Prisoners cannot use
§ 3664(k) as a vehicle for a court not in the district of incarceration to modify or
1
See Ihmound v. Jett, 272 F. App’x 525 (7th Cir. 2008) (“The IFRP is a means of exe-
cuting an inmate’s sentence, and thus complaints about the BOP’s administration of the pro-
gram are cognizable under 28 U.S.C. § 2241.”); Matheny v. Morrison, 307 F.3d 709, 712 (8th
Cir. 2002) (holding that prisoners’ challenges against an “IFRP payment schedule” are “cor-
rectly framed as § 2241 claims brought in the district where the sentence is being carried out”).
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No. 08-10658
suspend IRFP payments.2 The order appealed from is VACATED, and this case
is REMANDED with instruction to dismiss, without prejudice, for want of sub-
ject matter jurisdiction.
2
To the extent that United States v. Flemons, 277 F. App’x 367 (5th Cir. 2008) (per curi-
am), can be read to the contrary, it is incorrect and, as an unpublished decision, is not binding
precedent.
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