MEMORANDUM OPINION AND ORDER
Petitioner Dennis Fason ("Fason") represents that in December of 2004, he was sentenced to twenty-one months in the custody of the Federal Bureau of Prisons ("BOP") following his plea of guilty to wire fraud. He represents that at his sentencing, the district court judge "made a recommendation that [the] sentence be served in the federal boot camp program." See Document 1, Memorandum at 1. Fason eventually came to be incarcerated at FCI Forrest City in Forrest City, Arkansas.
Upon arriving at FCI Forrest City, Fason represents that the following occurred:
Petitioner attended an [orientation] meeting where he was informed by his case manager that he would receive 6 months halfway house. Three weeks later, after being called to the office, Petitioner's case manager informed him that due to a recent change in the BOP's halfway house policy (which occurred after sentencing), he would not be getting the six months that he was previously promised. Also, at this same meeting, Petitioner's case manager informed him that the boot camp had been terminated and was not available.
See Document 1, Memorandum at 2. He represents that he then began an administrative challenge to the BOP's decision to delay his entry into a community corrections center ("CCC"). He represents that his administrative challenge bore no fruit.
FEDERAL COURT SUBMISSIONS
In July of 2005, Fason commenced the proceeding at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. He alleged in his petition that the BOP's decision to delay his entry into a CCC was premised upon an invalid policy. He additionally alleged that the BOP's decision to terminate the "Boot Camp" Program violated the "notice and comment requirements [of] the Administrative Procedures Act [and] violated the Ex Post Facto Clause of the United States Constitution." Given the foregoing, he sought the following relief:
Petitioner requests this court to issue an order for Injunctive relief for the BOP to transfer this Petitioner to the Boot Camp Program or in the alternative to order the BOP to apply a longstanding policy statement that will afford the Petitioner similar relief that was offered by the Boot Camp Program. Also, Petitioner requests the court to order the BOP to consider this Petitioner for 6 months CCC placement without regards to the BOP's invalid rule of only considering prisoners for CCC for the last 10 percent of their sentence.
Respondent Linda Sanders ("Sanders") thereafter filed an answer to Fason's petition. With respect to his challenge to the BOP's decision to delay his entry into a CCC, she first maintained that he improperly filed his petition pursuant to 28 U.S.C. 2241. She next maintained that he failed to state a claim for relief because he has no constitutional right to a place of incarceration. She last maintained that he failed to state a claim for relief because the CCC placement policy adopted by the BOP is consistent with the relevant statutes and case law and is a permissible interpretation of 18 U.S.C. 3621(b) and 18 U.S.C. 3624(c).
With respect to Fason's challenge to the BOP's decision to terminate the "Boot Camp" Program, Sanders first maintained that the decision did not violate the Ex Post Facto Clause of the United States Constitution because no new law was applied, instead a decision was made to simply allocate limited funding to another program within an agency. She next maintained that because the decision of the BOP was nothing more than a re-allocation of funding within an agency, the decision is not reviewable under the Administrative Procedures Act ("APA"). She last maintained that the BOP's decision did not violate the APA because notice and comment were not required.
With respect to both claims, Sanders additionally maintained that Fason did not completely exhaust his administrative remedies. She specifically maintained that he failed to "completely exhaust his administrative remedies with respect to the CCC placement and did not even attempt to exhaust his administrative remedies with respect to the ["Boot Camp"] placement." See Document 4 at 31.
Fason subsequently filed a reply to Sanders' answer. In his submission, he again outlined the reasons why he believed he was entitled to relief. He joined that submission with the pending motion for expedited disposition. See Document 8.
Before addressing Fason's petition, the Court makes note of two preliminary matters. First, he is challenging the BOP's interpretation of 18 U.S.C. 3624(c) and, in turn, the decision of the BOP to delay his entry into a CCC. He is also challenging the BOP's decision to terminate the "Boot Camp" Program. The Court is convinced that his challenges involve challenges to the execution of his sentence. He has therefore properly filed his petition pursuant to 28 U.S.C. 2241.
Second, a prisoner is typically required to exhaust his administrative remedies before filing a petition pursuant to 28 U.S.C. 2241. See United States v. Chappel, 208 F.3d 1069 (8th Cir. 2000). The requirement is capable of being waived, though, when a prisoner can show that attempting to exhaust would be futile. The Court finds that requiring Fason to exhaust his administrative remedies would be futile; the BOP has taken a clear, consistent, and widespread stand against the positions advanced by Fason.
CHANGES TO THE BOP'S CCC PLACEMENT POLICY AND RESULTING LITIGATION.
The proceeding at bar is better understood when placed in a larger context, a context that involves at least two changes to the BOP's CCC placement policy. Prior to December of 2002, the BOP had a policy of "allowing [a] prisoner to serve [the] last six months of incarceration in a CCC regardless of what percent of the sentence this six months comprised." See Elwood v. Jeter, 386 F.3d 842, 844 (8th Cir. 2004). This policy was particularly favorable to a prisoner with a relatively short sentence, like Fason, because the policy allowed the prisoner to serve a significant portion of his sentence in a CCC.
In December of 2002, the Department of Justice's Office of Legal Council ("OLC") issued a memorandum opinion that provided, in part, the following: "[w]hen [a prisoner] has received a sentence of imprisonment, the [BOP] does not have general authority ... to place such [prisoner] in community confinement at the outset of his sentence or to transfer him from prison to community confinement at any time [the] BOP chooses during the course of his sentence." See Cohn v. Federal Bureau of Prisons, 2004 WL 240570 at 1 (S.D.N.Y. 2004). "[The] OLC [therefore] concluded that [the] BOP could no longer place [a prisoner] in [a CCC] to satisfy a prison term, except that, pursuant to 18 U.S.C. § 3624(c), [the] BOP could do so at the end of [a prisoner's] sentence for the lesser of (i) the last ten percent of the ...