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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2003 Decided October 14, 2003
No. 03-5119
ZALMEN ASHKENAZI,
APPELLEE
v.
ATTORNEY GENERAL OF THE UNITED STATES AND
DIRECTOR OF FEDERAL BUREAU OF PRISONS,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(03cv00062)
Peter D. Blumberg, Assistant U.S. Attorney, argued the
cause for appellants. With him on the briefs were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney. David J. Ball, Jr., Assistant U.S. Attor-
ney, entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Nathan Lewin argued the cause for appellee. With him on
the brief was Alyza D. Lewin.
Before: EDWARDS, RANDOLPH, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The Attorney General and the
Director of the Federal Bureau of Prisons appeal from the
district court’s order granting a preliminary injunction
against them. Because the case has become moot, we will
vacate the injunction and remand to the district court for the
entry of an order dismissing the complaint.
The injunction prohibited the Bureau of Prisons from
transferring Zalmen Ashkenazi out of a halfway house in
Brooklyn, New York. Ashkenazi pleaded guilty to conspiracy
to commit bank fraud in the Southern District of New York.
In imposing a sentence of a year and a day, the district court
recommended that Ashkenazi serve seven months of the
sentence in a halfway house. Rather than designating Ash-
kenazi to a prison for the first five months of his sentence, the
Bureau – erroneously, according to the government – as-
signed him to a halfway house at the beginning of his term.
Ashkenazi reported to the Brooklyn Community Correc-
tions Center on December 16, 2002. On the same day, the
Deputy Attorney General announced that ‘‘imprisonment’’ did
not include serving time at halfway houses and that the
Bureau therefore could no longer designate defendants sen-
tenced to terms of imprisonment directly to such institutions.
Under 18 U.S.C. § 3624(c), prisoners would become eligible
for placement in a halfway house only for the last ten percent
of their sentences, not to exceed six months. Those prisoners
currently in halfway houses who had more than 150 days left
in their sentences would be re-designated to a prison.
After learning that he had been re-designated, Ashkenazi
filed this action for an injunction, claiming that the new policy
violated the Ex Post Facto Clause of the Constitution. U.S.
CONST. art. I, § 9, cl. 3. The district court issued its prelimi-
nary injunction on February 24, 2003. The government’s
appeal is on the ground that the remedy for an ex post facto
3
law is to restore the status quo and that the injunction here is
excessive in scope because it restricts the Bureau from exer-
cising discretion to transfer Ashkenazi out of the Brooklyn
facility, discretion the Bureau had before the new policy took
effect.
Information provided by government counsel during oral
argument convinces us that the case is moot. After deduct-
ing good time credits from his sentence, Ashkenazi’s release
date is October 28, 2003. 18 U.S.C. § 3624(b). At this
writing he is therefore within the last ten percent of his term
and is eligible, under 18 U.S.C. § 3624(c), for ‘‘pre-release
custody’’ in a halfway house. With admirable candor, govern-
ment counsel represented that unless Ashkenazi engages in
misconduct, he will remain at the Brooklyn facility to com-
plete his sentence. It follows that the new policy, announced
in December 2002, can have no future effect on Ashkenazi
and that the case is therefore moot.
The district court’s order granting the preliminary injunc-
tion is therefore vacated and the case is remanded with
instructions to dismiss the complaint as moot. See U.S.
Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S.
18, 22-23 (1994); Flynt v. Weinberger, 762 F.2d 134, 135-36
(D.C. Cir. 1985).
So ordered.