CASTELLINI v. LAPPIN

365 F.Supp.2d 197 (2005) | Cited 12 times | D. Massachusetts | April 12, 2005

MEMORANDUM AND ORDER

I. INTRODUCTION

Plaintiff Richard Castellini,1 who was sentenced totwentyone months of incarceration with a recommendation that hissentence be served in the federal boot camp program, moves for atemporary restraining order and/or preliminary injunction toprevent defendant Harley Lappin, Director of the federal Bureauof Prisons ("BOP"), from terminating the boot camp program.Plaintiff argues that he is likely to succeed on the meritsbecause the BOP's termination of the program exceeded the BOP'sauthority, violated the notice-and-comment requirements foragency rulemaking under the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, and violated the Ex Post Facto Clause, U.S.Const. art. I, § 9, cl. 3. After hearing, plaintiff's motion isALLOWED on the ground that plaintiff is likely to succeed onhis claim that the BOP failed to comply with the APA and violatedthe Ex Post Facto Clause.

II. BACKGROUND

Congress enabled the creation of the federal boot camp program,also known as the Shock Incarceration Program ("SIP") orIntensive Confinement Center ("ICC") program, in the CrimeControl Act of 1990. Pub.L. No. 101-647, § 3001, 104 Stat. 4789(codified at 18 U.S.C. § 4046). The statute provides: (a) The Bureau of Prisons may place in a shock incarceration program any person who is sentenced to a term of imprisonment of more than 12, but not more than 30, months, if such person consents to that placement. (b) For such initial portion of the term of imprisonment as the Bureau of Prisons may determine, not to exceed 6 months, an inmate in the shock incarceration program shall be required to — (1) adhere to a highly regimented schedule that provides the strict discipline, physical training, hard labor, drill, and ceremony characteristic of military basic training; and (2) participate in appropriate job training and educational programs (including literacy programs) and drug, alcohol, and other counseling programs. (c) An inmate who in the judgment of the Director of the Bureau of Prisons has successfully completed the required period of shock incarceration shall remain in the custody of the Bureau for such period (not to exceed the remainder of the prison term otherwise required by law to be served by that inmate), and under such conditions, as the Bureau deems appropriate.18 U.S.C. § 4046. At the time of the statute's enactment, "the Bureau of Prisons [did] not have the legal authority necessary tooperate a shock incarceration program." H.R. Rep. No. 101-681(I)(1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6557, 6558.

While the BOP could set up a boot camp prison, it has no authority to release an inmate before that inmate's term would otherwise expire. A shock incarceration program is based upon an inmate serving a shorter, but more arduous, term. Legislation is necessary, therefore, if there is to be a Federal shock incarceration program.Id. The purpose of the legislation was "to enable the FederalGovernment" and, more specifically, to "authorize? the Bureau ofPrisons to operate a shock incarceration program." Id.; seeUnited States v. Padilla-Galarza, 351 F.3d 594, 599 (1st Cir.2003) ("The boot camp program . . . is authorized by statute,18 U.S.C. § 4046. . . ."). Congress also authorized funding for theprogram "for fiscal year 1990 and each fiscal year thereafter," §3002, 104 Stat. 4789, although Congress has not appropriatedfunds specifically for the boot camp program, see, e.g.,Consolidated Appropriations Act, 2004, Pub.L. 108-199, 118 Stat.3, 53-55 (appropriations for the Federal Prison System).2

The BOP enacted regulations to establish the boot camp program.See Intensive Confinement Center Program, 61 Fed. Reg. 18,658(Apr. 26, 1996); Drug Abuse Treatment and Intensive ConfinementCenter Programs: Early Release Consideration, 62 Fed. Reg. 53,690(Oct. 15, 1997) (both codified at 28 C.F.R. §§ 524.30-.33 (2004)). These regulations include "eligibility forconsideration" requirements, 28 C.F.R. § 524.31(a), and statethat placement in the program "is to be made by Bureau staff inaccordance with sound correctional judgment and the availabilityof Bureau resources," 28 C.F.R. § 524.31(b).

After a two-week trial in this Court (Tauro, J.) in July 2002,plaintiff was convicted of money laundering and conspiracy tolaunder money. (Pl.'s V. Compl. ¶ 16.) At a sentencing hearing onAugust 12, 2003, the Court sentenced plaintiff to twenty-onemonths of imprisonment. (Id. ¶¶ 17, 18.) The Court stayed thesentence pending appeal to the First Circuit, which affirmedplaintiff's conviction and sentence on December 15, 2004. (Id.¶ 19.) On January 6, 2005, this Court recommended that plaintiff,who met the eligibility qualifications, be allowed to self-reportto the ICC at USP-Lewisburg on February 14, 2005. (Id. ¶¶18-21.) According to plaintiff, if he successfully completed theboot camp program and subsequent community confinement term, hissentence would be reduced by five months based on the program'sprovision for sentence reduction. See 28 C.F.R. § 524.32(d).(Pl.'s V. Compl. ¶ 18.)

On January 5, 2005, however, defendant had announced to BOPstaff that the BOP was terminating the boot camp program due tobudgetary pressures. Defendant stated that "ICC programs areexceedingly costly to maintain" and that eliminating the programwould save an estimated $1.2 million annually. (Memo from Lappin to All Staff of 1/5/05 (attach. to Def.'s Opp.).) In a memorandumto federal judges dated January 14, 2005, defendant stated thatthe boot camp program would be terminated "effective immediately"and that individuals enrolled in the program would be allowed tocomplete it but that no new inmates would be accepted into theprogram. (Memo from Lappin to Fed. Judges of 1/14/05 (attach. toDef.'s Opp.).) Plaintiff's report date has been postponed untilmid-April.

III. ANALYSIS

"[T]he test for a preliminary injunction has four factors: 1) alikelihood of success on the merits, 2) irreparable harm to theplaintiff should preliminary relief not be granted, 3) whetherthe harm to the defendant from granting the preliminary reliefexceeds the harm to the plaintiff from denying it, and 4) theeffect of the preliminary injunction on the public interest."Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 75(1st Cir. 2005). However, "[t]he `sine qua non' of apreliminary injunction analysis is whether the plaintiff islikely to succeed on the merits of its claim." SEC v. Fife,311 F.3d 1, 8 (1st Cir. 2002); see Bl(a)ck Tea Soc'y v. City OfBoston, 378 F.3d 8, 15 (1st Cir. 2004) ("[L]ikelihood of successis an essential prerequisite for the issuance of a preliminaryinjunction.").

A. Likelihood of Success

1. BOP Authority Plaintiff argues that the BOP does not have the power toterminate the boot camp program and that the termination isultra vires. "An agency garners its authority to act from acongressional grant of such authority in the agency's enablingstatute." United States v. Miami Univ., 294 F.3d 797, 807 (6thCir. 2002); see also Yeboah v. United States Dep't ofJustice, 345 F.3d 216, 221 (3d Cir. 2003) ("The terms of theenabling statute establish the scope of agencyauthority. . . ."). Determining the scope of the BOP's authorityover the boot camp program, therefore, begins with theinterpretation of its enabling statute. Goldings v. Winn,383 F.3d 17, 21-22 (1st Cir. 2004) ("As in any case of statutoryconstruction, . . . analysis begins with the language of thestatute.") (quoting Hughes Aircraft Co. v. Jacobson,525 U.S. 432, 438 (1999)) (internal quotation omitted).

Section 4046 gives the BOP discretion over the operation of theboot camp program. The statute states that the BOP "may" placeeligible prisoners in the program. § 4046(a); see Jama v.Immigration & Customs Enforcement, 125 S. Ct. 694, 703 (2005)("The word `may' customarily connotes discretion."); see alsoPadilla-Galarza, 351 F.3d at 599 ("The Bureau of Prisonsdecides who may participate [in the program] but a recommendationby the judge is given weight."); Gissendanner v. Menifee,975 F. Supp. 249, 251 (W.D.N.Y. 1997) ("[C]onsideration for the`shock incarceration boot camp' and its availability to anyparticular prisoner is within the BOP's sole discretion."). The statutedictates the basic participation requirements of the boot campprogram, see § 4046(b) ("an inmate in the shock incarcerationprogram shall be required to"), but otherwise contains nomandates to the BOP as to the operation of the program, itsbudget, or capacity. Cf. 18 U.S.C. § 3624(d)(1) ("[T]he Bureauof Prisons shall furnish [a] prisoner with . . . suitableclothing" upon release.); § 4042(b) (BOP "shall" provide noticeof prisoner release). This grant of discretion comports with thepurpose of the legislation to enable the BOP to operate the bootcamp program. H.R. Rep. No. 101-681(I), reprinted in1990 U.S.C.C.A.N. 6472, 6558; see also Rolland v. Romney,318 F.3d 42, 48 (1st Cir. 2003) ("[T]he plain meaning of the statutorylanguage, as derived from the whole of the statute, including itsoverall policy and purpose, controls.").

Plaintiff argues that the BOP's authority over operation of theprogram does not include the authority to terminate it. To saythat the BOP "may assign" the plaintiff to the boot camp programmeans that the BOP has the discretion to assign inmates to theprogram, plaintiff argues, not the discretion to determinewhether the program exists. In Lincoln v. Vigil, 508 U.S. 182(1993), the Supreme Court considered the federal Indian HealthService's termination of a program for Indian children in order"to reallocate the Program's resources." Id. at 184. JusticeSouter explained for a unanimous Court that an agency's allocation of funds from a lump-sum appropriation requires "a complicated balancing of a number of factors which are peculiarly within its expertise": whether its "resources are best spent" on one program or another; whether it "is likely to succeed" in fulfilling its statutory mandate; whether a particular program "best fits the agency's overall policies"; and, "indeed, whether the agency has enough resources" to fund a program "at all."

Id. at 193 (quoting Heckler v. Chaney, 470 U.S. 821, 831(1985)) (emphasis added). Justice Souter noted that "Congressnever expressly appropriated funds" for the Indian Health Serviceprogram, id. at 186, and explained, The allocation of funds from a lump-sum appropriation is another administrative decision traditionally regarded as committed to agency discretion. After all, the very point of a lump-sum appropriation is to give an agency the capacity to adapt to changing circumstances and meet its statutory responsibilities in what it sees as the most effective or desirable way.Id. at 192. The Court concluded that it could not intrude onthe agency's budgetary discretion "as long as the agencyallocates funds from a lump-sum appropriation to meet permissiblestatutory objectives." Id. at 193. Therefore, the Court upheldthe termination of the program. Id.

Here, unlike in Lincoln, Congress enabled and authorizedfunding for the program at issue. See 508 U.S. at 190 ("[T]hecourt [of appeals] concededly could identify no statute orregulation even mentioning the Program. . . ."). Section 4046 is"a general enabling statute, however, not a mandatoryprescription." Town of Hallie v. City of Eau Claire,471 U.S. 34, 42 n. 5 (1985). More importantly in the Lincoln context, Congress has not specifically appropriated funds for the program.See State of New Jersey v. United States, 91 F.3d 463, 471(3d Cir. 1996) (distinguishing authorization from appropriationin discussion of Lincoln). "Congress knows how to make anappropriation . . . if it wants to," id., and "may alwayscircumscribe agency discretion to allocate resources by puttingrestrictions in the operative statutes," Lincoln,508 U.S. at 193. See, e.g., Departments of Commerce, Justice, and State,the Judiciary, and Related Agencies Appropriations Act, 1995,Pub.L. 103-317, tit. VIII, 108 Stat. 1724 (1994) (appropriation"to States to develop, construct, or expand military style bootcamp prison programs") (emphasis added).

Therefore, this Court agrees with the agency's reasonableinterpretation of the word "may" in § 4046, and holds thatCongress intended to authorize the BOP to operate a boot campprogram but did not intend to require the operation of such aprogram. The use of the word "shall" in relation to other BOPprograms highlights the use of "may" in § 4046. See18 U.S.C. § 3621(e)(1) ("the Bureau of Prisons shall, subject to theavailability of appropriations, provide residents substance abusetreatment"); see also Lopez v. Davis, 531 U.S. 230, 241(2001) (contrasting use of the words "may" and "shall" in samestatutory section); Reno v. Koray, 515 U.S. 50, 61 (1995)(deferring to BOP's interpretation of the statute). Thus, the BOPhas the authority to reallocate boot camp resources. 2. Notice and Comment

Regardless of its authority to reallocate resources, however,the BOP's termination of the boot camp program violated the APA.The APA "provides generally that an agency must publish notice ofa proposed rulemaking in the Federal Register and afford`interested persons an opportunity to participate . . . throughsubmission of written data, views, or arguments.'" Lincoln,508 U.S. at 195 (quoting §§ 553(b), (c)). "[N]umerous courts havefound that the APA applies to BOP rule-making." Iacaboni v.United States, 251 F. Supp. 2d 1015, 1036 (D. Mass. 2003); seeid. (listing cases).

"Determining whether an agency's statement is what the APAcalls a `rule' [for purposes of the notice-and-commentrequirement] can be a difficult exercise." Lincoln,508 U.S. at 196-97. "The notice-and-comment requirements apply . . . only toso-called `legislative' or `substantive' rules; they do not applyto `interpretative rules, general statements of policy, or rulesof agency organization, procedure, or practice." Id. at 196(quoting § 553(b)). However, "the label an agency places on arule is not dispositive" as to whether a rule "is legislative orinterpretative." Truckers United for Safety v. Fed. HighwayAdmin., 139 F.3d 934, 939 (D.C. Cir. 1998). Moreover, "[t]heline between a legislative or substantive rule and aninterpretative one is, as many courts have noted, far fromclear." Warder v. Shalala, 149 F.3d 73, 79 (1st Cir. 1998). In Lincoln, the Supreme Court held that termination of theprogram at issue was exempt from APA notice-and-commentrequirements, potentially as a rule of agency organization andcertainly as a general statement of policy. 508 U.S. at 197(citing 5 U.S.C. § 553(b)(A)). The Court held, "Whatever else maybe considered a `general statemen[t] of policy,' the term surelyincludes an announcement like the one before us, that an agencywill discontinue a discretionary allocation of unrestricted fundsfrom a lump-sum appropriation." Id. The Court added,"[D]ecisions to expend otherwise unrestricted funds are not,without more, subject to the notice-and-comment requirements of§ 553." Id. at 198 (citing Citizens to Preserve Overton Park,Inc. v. Volpe, 401 U.S. 402 (1971)) (emphasis added).

However, unlike the Indian Health Service in Lincoln, the BOPestablished the program at issue here, which Congress enabled,through regulation subject to notice and comment. See61 Fed. Reg. at 18,658 ("The Bureau is publishing this regulation as aninterim rule in order to provide for public comment. . . ."). TheAPA requires notice and comment "when an agency adopts a `newposition inconsistent with any of the [agency's] existingregulations.'" Iacaboni, 251 F. Supp. 2d at 1039 (quotingShalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 100 (1995)).Where an agency's "interpretation [of a regulation] has thepractical effect of altering the regulation, a formal amendment —almost certainly prospective and after notice and comment — is theproper course." United States v. Hoyts Cinemas Corp.,380 F.3d 558, 569 (1st Cir. 2004); see also Warder, 149 F.3d at 80("[A] rule is exempt from notice and comment as an interpretativerule if it does not `effect a substantive change in theregulations.'") (quoting Guernsey, 514 U.S. at 100).

The BOP's abrupt termination of the boot camp program isinconsistent with, and effectively repudiates, the regulations bywhich the BOP established the program. See Orengo Caraballo v.Reich, 11 F.3d 186, 196 (D.C. Cir. 1993) ("[W]here a second rulerepudiates or is irreconcilable with a prior legislative rule,the second rule must be an amendment of the first. . . .")(internal quotations and brackets omitted). Plaintiff points outthat on at least forty prior occasions when the BOP has madechanges to the Shock Incarceration Program, it has followed thenotice-and-comment provisions — even when the changes werelargely ministerial. See, e.g., Drug Abuse Treatment Program:Subpart Revision and Clarification, 68 Fed. Reg. 73,157 (Dec. 22,2003) (amending regulations as to its drug abuse treatmentprogram); Classification and Program Review: Team Meetings,64 Fed. Reg. 9,428 (Feb. 25, 1999) (amending regulations relating toinmates' participation in program reviews); Intensive ConfinementCenter Program, 61 Fed. Reg. 18,658 (Apr. 26, 1996) (final ruleadopting regulations relating to the operation of the ICCprogram). Moreover, the retroactive application of termination of theprogram to sentencing decisions made in reliance on the boot campeligibility of a defendant underscores one key purpose of thenotice requirement — ensuring fairness to the affected parties.See Sprint Corp. v. FCC, 315 F.3d 369, 373 (D.C. Cir. 2003)("the notice requirement . . . ensures fairness to affectedparties") (internal quotations omitted); see also Iacaboni,251 F. Supp. 2d at 1018 ("A sentencing option of longstandingacceptance, clearly supported by statute and repeatedly reflectedin the practice of hundreds of judges, was abruptly snatched awaywithout opportunity for comment by judges . . . and without evenprior notice. . . ."). Despite the BOP's authority to reallocateboot camp resources, it cannot precipitously terminate theprogram without notice and comment. See Citizens AwarenessNetwork, Inc. v. United States, 391 F.3d 338, 352 (1st Cir.2004) ("An agency may not act precipitously or in an irrationalmanner in revising its rules."). Therefore, the termination ofthe boot camp program violates the APA and is invalid. SeeNat'l Org. of Veterans' Advocates, Inc. v. Sec'y of VeteransAffairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) ("Failure to allownotice and comment, where required, is grounds for invalidatingthe rule.") (citing Auer v. Robbins, 519 U.S. 452, 459 (1997)).

3. Ex Post Facto Clause

Plaintiff also argues that termination of the boot camp programviolates the Ex Post Facto Clause. "To fall within the ex post facto prohibition, a law must be retrospective — thatis, it must apply to events occurring before its enactment — andit must disadvantage the offender affected by it, by altering thedefinition of criminal conduct or increasing the punishment forthe crime." Lynce v. Mathis, 519 U.S. 433, 441 (1997) (internalquotations and citation omitted). "[A] law need not impair a`vested right' to violate the ex post facto prohibition."Weaver v. Graham, 450 U.S. 24, 29 (1981). However, the ex post facto prohibition does not foreclose every change in the law that possesses some imaginable risk of adversely affecting an inmate's punishment. In the last analysis, "the question of what legislative adjustments will be held to be of sufficient moment to transgress the constitutional prohibition must be a matter of degree."Hamm v. Latessa, 72 F.3d 947, 957 (1st Cir. 1995) (quotingCal. Dep't of Corrs. v. Morales, 514 U.S. 499, 509 (1995)).

"[A] number of courts have held that binding administrativeregulations, as opposed to those that serve merely as guidelinesfor discretionary decisionmaking, are laws subject to ex postfacto analysis." Id. at 956 n. 14. Two trial courts in thisdistrict have previously held that the BOP's 2002 change in itscommunity corrections center ("CCC") policy, which terminated theplacement of inmates into halfway houses to serve short terms ofimprisonment, violated the Ex Post Facto Clause as todefendants who had been sentenced before the policy change. SeeIacaboni, 251 F. Supp. 2d at 1018 ("The Government may not . . .instruct judges, defendants and counsel that short terms ofimprisonment may . . . be served in community confinement, and then, aftersentencing, change the basic rules."); see also Monahan v.Winn, 276 F. Supp. 2d 196, 219 (D. Mass. 2003) ("The Ex PostFacto Clause simply forbids retroactive application of the BOPpolicy change to prisoners whose offense conduct predated thechange."). One court concluded, "The measure of punishment wasone thing at the time of sentencing; it is substantially greaternow, and with no possibility of correction." Iacaboni,251 F. Supp. 2d at 1042; see also Crowley v. Fed. Bureau of Prisons,312 F. Supp. 2d 453, 462-63 (S.D.N.Y. 2004); Ashkenazi v.Attorney Gen. of the United States, 246 F. Supp. 2d 1, 4 (D.D.C.2003) ("[T]he change in BOP policy operates retroactively. . . .to an offense that was committed three years and ten monthsbefore the new policy was announced, and to a guilty plea andpronouncement of sentence that occurred six and two months,respectively, before. . . ."), vacated as moot, 346 F.3d 191(D.C. Cir. 2003).

In this respect, the present case is indistinguishable from theCCC cases. Although the BOP, unlike in the CCC context, isallowing individuals currently enrolled in the boot camp programto complete it, termination of the program is still retroactiveas to individuals who received a sentence with a boot camprecommendation before public notice of termination of the programon January 14, 2005. See Lynce, 519 U.S. at 441 (To be expost facto, a law must "apply to events occurring before itsenactment."). Plaintiff was sentenced seventeen months before (and recommended to a boot camp eight days before) defendant'smemorandum to federal judges. See Crowley,312 F. Supp. 2d at 462-63 (examining whether the sentencing judges "had relied uponBOP procedure"); Iacaboni, 251 F. Supp. 2d at 1041 (policychanged after judge sentenced petitioners "in reliance on theireligibility" for CCC program); cf. id. at 1042 (discussinginvalidity of sentence "based upon an erroneous factualassumption or other error").

As in the CCC cases, therefore, the issue is whether the"practical implementation" of the "retroactive application willresult in a longer period of incarceration than under the earlierrule." Garner v. Jones, 529 U.S. 244, 255 (2000); see alsoJohnson v. United States, 529 U.S. 694, 699 (2000) (Petitionermust show that retroactive law "raises the penalty from whateverthe law provided when he acted.").

There are a number of benefits available to an inmate who isplaced in, and successfully completes, the Shock IncarcerationProgram. First, after serving six months in an ICC, the inmatemay be transferred to community confinement, often in theinmate's home community, for a period of two-to-six months. See28 C.F.R. § 524.32(d)(1). If the inmate successfully completesthis CCC portion of the sentence, he or she may serve theremainder of the sentence in home confinement. Importantly, uponsuccessful completion of the Shock Incarceration Program and theCCC portion of the sentence, the inmate is eligible for a reduction of up to six months in his or her sentence. §524.32(d)(2).

Termination of the program eliminates plaintiff's potentialeligibility for the program's sentence reduction, in addition toaltering significantly the conditions of plaintiff'sincarceration. See 28 C.F.R. § 524.32(d); see also Monahan,276 F. Supp. 2d at 216 ("The government argues that the BOPpolicy change does not `increase' an offender's punishment; itonly alters its conditions. Yet the inevitable result of thatalteration is to make it more punitive."). The fact that a"recommendation of [shock incarceration] does not guarantee aplacement there. . . . does not affect the ex post factoanalysis." Monahan, 276 F. Supp. 2d at 217; see Weaver,450 U.S. at 29 (no "vested right" required). Elimination of theprogram "can constitute an increase in punishment, because a`prisoner's eligibility for reduced imprisonment is a significantfactor entering into both the defendant's decision to pleabargain and the judge's calculation of the sentence to beimposed." Lynce, 519 U.S. at 445-46 (quoting Weaver,450 U.S. at 32); see also Monahan, 276 F. Supp. 2d at 217 ("[T]heDOJ's clampdown on BOP discretion as to place of imprisonmentincreases punishment for prisoners."); Iacaboni,251 F. Supp. 2d at 1041 ("[T]he progression from a sentence with eligibilityfor possible community confinement to one without the remotestpossibility of such eligibility constitutes a significantincrease in the measure of punishment. . . .").

If the BOP had not terminated the boot camp program,plaintiff's designation to the program would be subject to theBOP's "sound correctional judgment and the availability of Bureauresources." 28 C.F.R. § 524.31(b). However, the BOP's discretionover allocation of resources, and over plaintiff's designation tothe boot camp program, does not excuse the ex post factotermination of the program following plaintiff's sentencing andboot camp recommendation. See Garner, 529 U.S. at 253 ("Thepresence of discretion does not displace the protections of theEx Post Facto Clause. . . ."). Therefore, based on plaintiff'sEx Post Facto Clause and APA claims, plaintiff is likely tosucceed on the merits in this case. See Rullan,397 F.3d at 75; Bl(a)ck Tea Soc'y, 378 F.3d at 15.

B. Other Preliminary Injunction Factors

"`Irreparable injury' in the preliminary injunction contextmeans an injury that cannot adequately be compensated for eitherby a later-issued permanent injunction, after a full adjudicationon the merits, or by a later-issued damages remedy." Rullan,397 F.3d at 76. Plaintiff is scheduled to begin serving histwentyone-month sentence in a matter of days and, as such, willsuffer irreparable harm if preliminary injunctive relief is notgranted. See id.; see also Charlesbank Equity Fund II v.Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004) ("Afinding of irreparable harm must be grounded on something more thanconjecture, surmise, or a party's unsubstantiated fears of whatthe future may have in store."). Moreover, the harm thatplaintiff faces in serving his sentence with no chance ofplacement in the boot camp program outweighs the inconvenienceand expense to the BOP in considering him for eligibility. SeeAshkenazi, 246 F. Supp. 2d at 10 (Given the seventeen-yearhistory of the CCC program, "a delay pending resolution of themerits of Plaintiff's claim will not cause substantial injury toDefendants.").

Finally, maintaining plaintiff's eligibility for the boot campprogram pending the BOP's compliance with the APA is in thepublic interest. See Ga. Gazette Publ'g Co. v. United StatesDep't of Def., 562 F. Supp. 1004, 1011 (S.D. Ga. 1983) ("[W]herean administrative agency has exceeded its authority, or failed tofollow the applicable requirements of agency regulations, and hasfailed to act in the public interest, court intervention isappropriate. . . . [T]he strong public interest in avoidingdisruption of the procurement process must give way to the publicinterest in requiring agencies to stick to their regulations.")(internal citations omitted); see also Monahan,276 F. Supp. 2d at 222 ("[M]aintaining a full menu of appropriate punishmentoptions is in the public interest.").

IV. ORDER

Plaintiff's motion for a preliminary injunction (Docket No. 2) is ALLOWED. The Bureau of Prisons is enjoined fromterminating the Shock Incarceration (or Intensive ConfinementCenter) Program until it has complied with the AdministrativeProcedure Act and shall in good faith consider plaintiff'seligibility for the Shock Incarceration Program.

1. Plaintiff has not sought to certify a class.

2. A search of congressional appropriation acts since 1990yields no reference to the SIP, ICC, or federal boot campprogram.

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