Anthony R. Elwood v. Cole Jeter, Warden, Fci Forrest City United States Bureau of Prisons

RILEY, Circuit Judge,

dissenting.

I respectfully dissent.

According to section 3621(b), the Bureau of Prisons (BOP) is required to “designate the place of the prisoner’s imprisonment. The [BOP] may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the [BOP],” and may transfer an inmate “at any time.” 18 U.S.C. § 3621(b). Under section 3624(c), the BOP’s placement of an inmate in a Community Corrections Center (CCC) (or other establishment meant to facilitate the inmate’s reentry into society) before the completion of the inmate’s term of imprisonment is limited to “a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served.” 18 U.S.C. § 3624(c).

Any inconsistency between sections 3621(b) and 3624(c) can be reconciled by applying two canons of statutory construction. The first canon mandates specific statutory provisions govern over more general provisions. Varity Corp. v. Howe, 516 U.S. 489, 511, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). The Supreme Court interprets the canon, “the specific governs the general,” as providing “a warning against applying a general provision when doing so would undermine limitations created by a more specific provision.” Id. Section 3621(b) delegates broad authority to the BOP to “designate the place of the prisoner’s imprisonment.” 18 U.S.C. § 3621(b). Section 3624(c), on the other hand, is narrower, specifically capping at six months the amount of time an inmate may be placed in a CCC (or other transí-*848tional facility) at the end of his term of imprisonment. 18 U.S.C. § 3624(c).

The second canon applicable here is courts must be “reluetan[t] to treat statutory terms as surplusage.” Babbitt v. Sweet Home Chapter, Cmtys. for Great Ore., 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). “It is our duty ‘to give effect, if possible, to every clause and word of a statute,’ rather than to emasculate an entire section.” United States v. Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883)). By reading the two sections together to permit the BOP to begin to transition inmates at any time during their imprisonment, the majority eviscerates both the specific limitations set forth in section 3624(c) and Congress’s express intention to limit the amount of time permitted for CCC placement at the conclusion of an inmate’s term.

A plain reading of the two statutes in conjunction with each other permits compliance with the two cited canons. The specific ten percent/six-month limitations contained in section 3624(c) expressly restrict the BOP’s broad grant of general authority and discretion conferred under section 3621(b). See, e.g., Galizia v. Fed. Bureau of Prisons, No. 04 Civ. 5777(RCC), 2004 WL 1900350, at *3 (S.D.N.Y. Aug.25, 2004); Skelskey v. Deboo, No. Civ.A. 3:04CV986CFD, 2004 WL 1897023, at *3 (D.Conn. Aug.16, 2004); Loeffler v. Menifee, 326 F.Supp.2d 454, 461-62 (S.D.N.Y. 2004); Cohn v. Fed. Bureau of Prisons, 302 F.Supp.2d 267, 273 (S.D.N.Y.2004); Adler v. Menifee, 293 F.Supp.2d 363, 368-69 (S.D.N.Y.2003); accord Crapanzano v. Menifee, No. 04 Civ. 1052(SAS), 2004 WL 736860, at *2 n. 5 (S.D.N.Y. Apr.5, 2004) (agreeing section 3624(c) expressly restricts broad grant of authority in section 3621(b), but concluding change in BOP policy violates the Administrative Procedures Act and Ex Post Facto Clause).

Under section 3621(b), therefore, the BOP generally may place an inmate in any penal or correctional facility at any time, subject, however, to the specific time limitations set forth in section 3624(c). Without rendering meaningless any terms in either statute, this interpretation utilizes the language contained in both statutes, and specifically gives life to section 3624(e)’s limitations on placements in transitional facilities at the end of an inmate’s term. Such an interpretation further complies with the canon, “the specific governs the general.” Conversely, the majority opinion’s interpretation ignores the limitations “not to exceed six months” and “of the last 10 per centum,” rendering the terms mere “surplusage” in violation of both canons of statutory construction.

I agree with the majority’s conclusion that section 3624(c) places an affirmative duty on the BOP to facilitate the transition of inmates out of the prison system at the conclusion of their sentence. Section 3624(c), the more specific statute, evinces a dual Congressional intent-an intent to place a limit on section 3621(b)’s broad grant of authority, and an intent to mandate efforts are made to ease an inmate’s transition back into society, which transition is “not to exceed six months.” My disagreement is with the majority’s decision to disregard the specific limitations set forth in section 3624(c), notwithstanding Congress’s use of the phrase “a reasonable part” in modifying the limitations. The majority concludes section 3621(b) permits the BOP to transfer an inmate to a CCC for more than six months. Section 3624(c), while mandating the BOP allow an inmate the opportunity to transition into the community at the conclusion of his imprisonment, also states such placement must be for “a reasonable part” of the last *849ten percent of the term of imprisonment, but such placement is “not to exceed six months.” Congress gave the BOP some discretion in interpreting what “a reasonable part” of that time will be. However, as made clear in section 3624(c), that discretion ends at a maximum of six months.

Practical application of the majority’s decision would permit inmates being assigned to CCCs for years or for the entire term of imprisonment. May the BOP decide a federal inmate serving a twenty-year or even fifty-year sentence will be' placed in a CCC for ten years or for the entire imprisonment term? According to the majority, such a decision would rationally implement sections 3621(b) and 3624(c), notwithstanding section 3624(c)’s express six-month limitation.

The majority’s interpretation eviscerates section 3624(c) in a judicial effort to expand the possible CCC time. I prefer to follow the language of Congress in its entirety. Therefore, I dissent.