Appellate Law

CA1: BOP?s regulations denying placement in halfway houses valid

By S. COTUS

Muniz v. Sabol, Nos. 06-2692, 06-2693.  The First Circuit holds that ?the Bureau of Prisons (BOP) may, through rulemaking, deny placement in a community corrections center (CCC) Footnote  to all prisoners during the first ninety percent of their sentences.?  The First defers to the government, admitting that it is creating a circuit split.

Initially, there was a memo from the Office of Legal Counsel that purported to do this.  However, position was rejected by the courts.  Then, the BOP adopted 28 C.F.R. § 570.21(a).  Read on.  For Justice!

Applying Lopez v. Davis, 531 U.S. 230 (2001) (exercise of categorical discretion) and Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 n.9 (1984) (if you don?t know this case you can stop reading now), the First says that Congress didn?t categorically prohibit such BOP rulemaking, even if Congress has set out various factors for the BOP to consider in 18 U.S.C. §§ 3621(b)(2)-(4), and seeing that the statute might be ambiguous, the First looks to the legislative history and says that its reading of the statue comports with it.  Further, it then declares that the BOP?s reading is reasonable.

So, the First deepens this split.

The government raises its normal boilerplate arguments of ?jurisdiction? and ?mootness.?  Since those are usually rejected, it probably isn?t worth considering them.

Full post as published by Appellate Law and Practice on February 26, 2008 (boomark / email).