UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

RICHARD CASTELLINI, Plaintiff,
v.
HARLEY G. LAPPIN (in his official capacity as Director of the Bureau of Prisons),
Defendant,

) ) ) ) ) CIVIL ACTION NO. 05-10220-PBS ) ) ) ) ) ) )

MEMORANDUM AND ORDER April 12, 2005
Saris, U.S.D.J. I. INTRODUCTION
Plaintiff Richard Castellini,1 who was sentenced to twentyone months of incarceration with a recommendation that his sentence be served in the federal boot camp program, moves for a temporary restraining order and/or preliminary injunction to prevent defendant Harley Lappin, Director of the federal Bureau of Prisons (“BOP”), from terminating the boot camp program. Plaintiff argues that he is likely to succeed on the merits because the BOP’s termination of the program exceeded the BOP’s authority, violated the notice-and-comment requirements for agency rulemaking under the Administrative Procedure Act (“APA”),

1

Plaintiff has not sought to certify a class.

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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 is
ALLOWED on the ground that plaintiff is likely to succeed on his
claim that the BOP failed to comply with the APA and violated the
Ex Post Facto Clause.
II. BACKGROUND
Congress enabled the creation of the federal boot camp
program, also known as the Shock Incarceration Program (“SIP”) or
Intensive Confinement Center (“ICC”) program, in the Crime
Control 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
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Bureau of Prisons [did] not have the legal authority necessary to operate 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 Federal Government” and, more specifically, to “authorize[] the Bureau of Prisons to operate a shock incarceration program.” Id.; see United 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 the program “for fiscal year 1990 and each fiscal year thereafter,” § 3002, 104 Stat. 4789, although Congress has not appropriated funds 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 Confinement Center Programs: Early Release Consideration, 62 Fed.
2 A search of congressional appropriation acts since 1990 yields no reference to the SIP, ICC, or federal boot camp program.
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Reg. 53,690 (Oct. 15, 1997) (both codified at 28 C.F.R. §§ 524.30-.33 (2004)). These regulations include “eligibility for consideration” requirements, 28 C.F.R. § 524.31(a), and state that placement in the program “is to be made by Bureau staff in accordance with sound correctional judgment and the availability of 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 to launder money. (Pl.’s V. Compl. ¶ 16.) At a sentencing hearing on August 12, 2003, the Court sentenced plaintiff to twenty-one months of imprisonment. (Id. ¶¶ 17, 18.) The Court stayed the sentence pending appeal to the First Circuit, which affirmed plaintiff’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-report to the ICC at USP-Lewisburg on February 14, 2005. (Id. ¶¶ 18-21.) According to plaintiff, if he successfully completed the boot camp program and subsequent community confinement term, his sentence would be reduced by five months based on the program’s provision 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 BOP staff that the BOP was terminating the boot camp program due to budgetary pressures. Defendant stated that “ICC programs are
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exceedingly costly to maintain” and that eliminating the program would save an estimated $1.2 million annually. (Memo from Lappin to All Staff of 1/5/05 (attach. to Def.’s Opp.).) In a memorandum to federal judges dated January 14, 2005, defendant stated that the boot camp program would be terminated “effective immediately” and that individuals enrolled in the program would be allowed to complete it but that no new inmates would be accepted into the program. (Memo from Lappin to Fed. Judges of 1/14/05 (attach. to Def.’s Opp.).) Plaintiff’s report date has been postponed until mid-April.
III. ANALYSIS “[T]he test for a preliminary injunction has four factors: 1) a likelihood of success on the merits, 2) irreparable harm to the plaintiff should preliminary relief not be granted, 3) whether the harm to the defendant from granting the preliminary relief exceeds the harm to the plaintiff from denying it, and 4) the effect 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 a preliminary injunction analysis is whether the plaintiff is likely 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 Of Boston, 378 F.3d 8, 15 (1st Cir. 2004) (“[L]ikelihood of success is an essential prerequisite for the issuance of a preliminary injunction.”).
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A. Likelihood of Success 1. BOP Authority Plaintiff argues that the BOP does not have the power to
terminate the boot camp program and that the termination is ultra vires. “An agency garners its authority to act from a congressional grant of such authority in the agency's enabling statute.” United States v. Miami Univ., 294 F.3d 797, 807 (6th Cir. 2002); see also Yeboah v. United States Dep’t of Justice, 345 F.3d 216, 221 (3d Cir. 2003) (“The terms of the enabling statute establish the scope of agency authority ....”). Determining the scope of the BOP’s authority over the boot camp program, therefore, begins with the interpretation of its enabling statute. Goldings v. Winn, 383 F.3d 17, 21-22 (1st Cir. 2004) (“As in any case of statutory construction, ... analysis begins with the language of the statute.”) (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 the boot camp program. The statute states that the BOP “may” place eligible 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 also Padilla-Galarza, 351 F.3d at 599 (“The Bureau of Prisons decides who may participate [in the program] but a recommendation by the
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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 any particular prisoner is within the BOP’s sole discretion.”). The statute dictates the basic participation requirements of the boot camp program, see § 4046(b) (“an inmate in the shock incarceration program shall be required to”), but otherwise contains no mandates to the BOP as to the operation of the program, its budget, or capacity. Cf. 18 U.S.C. § 3624(d)(1) (“[T]he Bureau of Prisons shall furnish [a] prisoner with ... suitable clothing” upon release.); § 4042(b) (BOP “shall” provide notice of prisoner release). This grant of discretion comports with the purpose of the legislation to enable the BOP to operate the boot camp program. H.R. Rep. No. 101-681(I), reprinted in 1990 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 statutory language, as derived from the whole of the statute, including its overall policy and purpose, controls.”).
Plaintiff argues that the BOP’s authority over operation of the program does not include the authority to terminate it. To say that the BOP “may assign” the plaintiff to the boot camp program means that the BOP has the discretion to assign inmates to the program, plaintiff argues, not the discretion to determine whether the program exists. In Lincoln v. Vigil, 508 U.S. 182
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(1993), the Supreme Court considered the federal Indian Health
Service’s termination of a program for Indian children in order
“to reallocate the Program’s resources.” Id. at 184. Justice
Souter 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 “Congress never
expressly appropriated funds” for the Indian Health Service
program, 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 on the
agency’s budgetary discretion “as long as the agency allocates
funds from a lump-sum appropriation to meet permissible statutory
objectives.” Id. at 193. Therefore, the Court upheld the
termination of the program. Id.
Here, unlike in Lincoln, Congress enabled and authorized
funding for the program at issue. See 508 U.S. at 190 (“[T]he
court [of appeals] concededly could identify no statute or
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regulation even mentioning the Program ....”). Section 4046 is “a general enabling statute, however, not a mandatory prescription.” 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 appropriation in discussion of Lincoln). “Congress knows how to make an appropriation ... if it wants to,” id., and “may always circumscribe agency discretion to allocate resources by putting restrictions 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 boot camp prison programs”) (emphasis added).
Therefore, this Court agrees with the agency’s reasonable interpretation of the word “may” in § 4046, and holds that Congress intended to authorize the BOP to operate a boot camp program but did not intend to require the operation of such a program. The use of the word “shall” in relation to other BOP programs highlights the use of “may” in § 4046. See 18 U.S.C. §3621(e)(1) (“the Bureau of Prisons shall, subject to the availability of appropriations, provide residents substance abuse
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treatment”); see also Lopez v. Davis, 531 U.S. 230, 241 (2001) (contrasting use of the words “may” and “shall” in same statutory section); Reno v. Koray, 515 U.S. 50, 61 (1995) (deferring to BOP’s interpretation of the statute). Thus, the BOP has 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 of a proposed rulemaking in the Federal Register and afford ‘interested persons an opportunity to participate ... through submission of written data, views, or arguments.’” Lincoln, 508 U.S. at 195 (quoting §§ 553(b),(c)). “[N]umerous courts have found that the APA applies to BOP rule-making.” Iacaboni v. United States, 251 F. Supp. 2d 1015, 1036 (D. Mass. 2003); see id. (listing cases). “Determining whether an agency's statement is what the APA calls a ‘rule’ [for purposes of the notice-and-comment requirement] can be a difficult exercise.” Lincoln, 508 U.S. at 196-97. “The notice-and-comment requirements apply ... only to so-called ‘legislative’ or ‘substantive’ rules; they do not apply to ‘interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” Id. at 196 (quoting § 553(b)). However, “the label an agency places on a
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rule is not dispositive” as to whether a rule “is legislative or interpretative.” Truckers United for Safety v. Fed. Highway Admin., 139 F.3d 934, 939 (D.C. Cir. 1998). Moreover, “[t]he line between a legislative or substantive rule and an interpretative one is, as many courts have noted, far from clear.” Warder v. Shalala, 149 F.3d 73, 79 (1st Cir. 1998).
In Lincoln, the Supreme Court held that termination of the program at issue was exempt from APA notice-and-comment requirements, potentially as a rule of agency organization and certainly as a general statement of policy. 508 U.S. at 197 (citing 5 U.S.C. § 553(b)(A)). The Court held, “Whatever else may be considered a ‘general statemen[t] of policy,’ the term surely includes an announcement like the one before us, that an agency will discontinue a discretionary allocation of unrestricted funds from 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 BOP established the program at issue here, which Congress enabled, through regulation subject to notice and comment. See 61 Fed. Reg. at 18,658 (“The Bureau is publishing this regulation
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as an interim rule in order to provide for public comment ....”). The APA requires notice and comment “when an agency adopts a ‘new position inconsistent with any of the [agency’s] existing regulations.’” Iacaboni, 251 F. Supp. 2d at 1039 (quoting Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 100 (1995)). Where an agency’s “interpretation [of a regulation] has the practical effect of altering the regulation, a formal amendment -- almost certainly prospective and after notice and comment -- is the proper 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 interpretative rule if it does not ‘effect a substantive change in the regulations.’”) (quoting Guernsey, 514 U.S. at 100).
The BOP’s abrupt termination of the boot camp program is inconsistent with, and effectively repudiates, the regulations by which the BOP established the program. See Orengo Caraballo v. Reich, 11 F.3d 186, 196 (D.C. Cir. 1993) (“[W]here a second rule repudiates 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 out that on at least forty prior occasions when the BOP has made changes to the Shock Incarceration Program, it has followed the notice-and-comment provisions –- even when the changes were largely ministerial. See, e.g., Drug Abuse Treatment Program:
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Subpart Revision and Clarification, 68 Fed. Reg. 73,157 (Dec. 22, 2003) (amending regulations as to its drug abuse treatment program); Classification and Program Review: Team Meetings, 64 Fed. Reg. 9,428 (Feb. 25, 1999) (amending regulations relating to inmates’ participation in program reviews); Intensive Confinement Center Program, 61 Fed. Reg. 18,658 (Apr. 26, 1996) (final rule adopting regulations relating to the operation of the ICC program).
Moreover, the retroactive application of termination of the program to sentencing decisions made in reliance on the boot camp eligibility of a defendant underscores one key purpose of the notice 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 affected parties”) (internal quotations omitted); see also Iacaboni, 251 F. Supp. 2d at 1018 (“A sentencing option of longstanding acceptance, clearly supported by statute and repeatedly reflected in the practice of hundreds of judges, was abruptly snatched away without opportunity for comment by judges ... and without even prior notice ....”). Despite the BOP’s authority to reallocate boot camp resources, it cannot precipitously terminate the program without notice and comment. See Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 352 (1st Cir. 2004) (“An agency may not act precipitously or in an irrational manner in revising
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its rules.”). Therefore, the termination of the boot camp program violates the APA and is invalid. See Nat’l Org. of Veterans' Advocates, Inc. v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (“Failure to allow notice and comment, where required, is grounds for invalidating the 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 program violates the Ex Post Facto Clause. “To fall within the ex post facto prohibition, a law must be retrospective -- that is, it must apply to events occurring before its enactment -- and it must disadvantage the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441 (1997) (internal quotations 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) (quoting Cal. Dep’t of Corrs. v. Morales, 514 U.S. 499, 509 (1995)). “[A] number of courts have held that binding administrative regulations, as opposed to those that serve merely as guidelines
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for discretionary decisionmaking, are laws subject to ex post facto analysis.” Id. at 956 n.14. Two trial courts in this district have previously held that the BOP’s 2002 change in its community corrections center (“CCC”) policy, which terminated the placement of inmates into halfway houses to serve short terms of imprisonment, violated the Ex Post Facto Clause as to defendants who had been sentenced before the policy change. See Iacaboni, 251 F. Supp. 2d at 1018 (“The Government may not ... instruct judges, defendants and counsel that short terms of imprisonment may ... be served in community confinement, and then, after sentencing, change the basic rules.”); see also Monahan v. Winn, 276 F. Supp. 2d 196, 219 (D. Mass. 2003) (“The Ex Post Facto Clause simply forbids retroactive application of the BOP policy change to prisoners whose offense conduct predated the change.”). One court concluded, “The measure of punishment was one thing at the time of sentencing; it is substantially greater now, 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 months before the new policy was announced, and to a guilty plea and pronouncement of sentence that occurred six and two months, respectively, before ....”),
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vacated as moot, 346 F.3d 191 (D.C. Cir. 2003). In this respect, the present case is indistinguishable from
the CCC cases. Although the BOP, unlike in the CCC context, is allowing individuals currently enrolled in the boot camp program to complete it, termination of the program is still retroactive as to individuals who received a sentence with a boot camp recommendation before public notice of termination of the program on January 14, 2005. See Lynce, 519 U.S. at 441 (To be ex post facto, a law must “apply to events occurring before its enactment.”). Plaintiff was sentenced seventeen months before (and recommended to a boot camp eight days before) defendant’s memorandum to federal judges. See Crowley, 312 F. Supp. 2d at 462-63 (examining whether the sentencing judges “had relied upon BOP procedure”); Iacaboni, 251 F. Supp. 2d at 1041 (policy changed after judge sentenced petitioners “in reliance on their eligibility” for CCC program); cf. id. at 1042 (discussing invalidity of sentence “based upon an erroneous factual assumption or other error”).
As in the CCC cases, therefore, the issue is whether the “practical implementation” of the “retroactive application will result in a longer period of incarceration than under the earlier rule.” Garner v. Jones, 529 U.S. 244, 255 (2000); see also Johnson v. United States, 529 U.S. 694, 699 (2000) (Petitioner must show that retroactive law “raises the penalty from whatever
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the law provided when he acted.”). There are a number of benefits available to an inmate who is
placed in, and successfully completes, the Shock Incarceration Program. First, after serving six months in an ICC, the inmate may be transferred to community confinement, often in the inmate’s home community, for a period of two-to-six months. See 28 C.F.R. § 524.32(d)(1). If the inmate successfully completes this CCC portion of the sentence, he or she may serve the remainder of the sentence in home confinement. Importantly, upon successful completion of the Shock Incarceration Program and the CCC 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 potential eligibility for the program’s sentence reduction, in addition to altering significantly the conditions of plaintiff’s incarceration. See 28 C.F.R. § 524.32(d); see also Monahan, 276 F. Supp. 2d at 216 (“The government argues that the BOP policy change does not ‘increase’ an offender’s punishment; it only alters its conditions. Yet the inevitable result of that alteration is to make it more punitive.”). The fact that a “recommendation of [shock incarceration] does not guarantee a placement there .... does not affect the ex post facto analysis.” Monahan, 276 F. Supp. 2d at 217; see Weaver, 450 U.S. at 29 (no
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“vested right” required). Elimination of the program “can constitute an increase in punishment, because a ‘prisoner's eligibility for reduced imprisonment is a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed.” Lynce, 519 U.S. at 445-46 (quoting Weaver, 450 U.S. at 32); see also Monahan, 276 F. Supp. 2d at 217 (“[T]he DOJ’s clampdown on BOP discretion as to place of imprisonment increases punishment for prisoners.”); Iacaboni, 251 F. Supp. 2d at 1041 (“[T]he progression from a sentence with eligibility for possible community confinement to one without the remotest possibility of such eligibility constitutes a significant increase 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 the BOP’s “sound correctional judgment and the availability of Bureau resources.” 28 C.F.R. § 524.31(b). However, the BOP’s discretion over allocation of resources, and over plaintiff’s designation to the boot camp program, does not excuse the ex post facto termination of the program following plaintiff’s sentencing and boot camp recommendation. See Garner, 529 U.S. at 253 (“The presence of discretion does not displace the protections of the Ex Post Facto Clause ....”). Therefore, based on plaintiff’s Ex Post Facto Clause and APA claims, plaintiff is likely to succeed
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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 context means an injury that cannot adequately be compensated for either by a later-issued permanent injunction, after a full adjudication on the merits, or by a later-issued damages remedy.” Rullan, 397 F.3d at 76. Plaintiff is scheduled to begin serving his twentyone-month sentence in a matter of days and, as such, will suffer irreparable harm if preliminary injunctive relief is not granted. See id.; see also Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004) (“A finding of irreparable harm must be grounded on something more than conjecture, surmise, or a party's unsubstantiated fears of what the future may have in store.”). Moreover, the harm that plaintiff faces in serving his sentence with no chance of placement in the boot camp program outweighs the inconvenience and expense to the BOP in considering him for eligibility. See Ashkenazi, 246 F. Supp. 2d at 10 (Given the seventeen-year history of the CCC program, “a delay pending resolution of the merits of Plaintiff’s claim will not cause substantial injury to Defendants.”).
Finally, maintaining plaintiff’s eligibility for the boot camp program pending the BOP’s compliance with the APA is in the
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public interest. See Ga. Gazette Publ’g Co. v. United States Dep’t of Def., 562 F. Supp. 1004, 1011 (S.D. Ga. 1983) (“[W]here an administrative agency has exceeded its authority, or failed to follow the applicable requirements of agency regulations, and has failed to act in the public interest, court intervention is appropriate.... [T]he strong public interest in avoiding disruption of the procurement process must give way to the public interest 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 punishment options 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 from terminating the Shock Incarceration (or Intensive Confinement Center) Program until it has complied with the Administrative Procedure Act and shall in good faith consider plaintiff’s eligibility for the Shock Incarceration Program.
/s/ Patti B. Saris PATTI B. SARIS United States District Judge
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 </s> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

RICHARD CASTELLINI

)

)

Plaintiff,

)

)

v.

)

)

HARLEY G. LAPPIN (in his official capacity )

as Director of the Bureau of Prisons),

)

)

Defendant.

)

JOINT MOTION TO CONTINUE STATUS CONFERENCE
Case. No. 05-CV-10220

Plaintiff Richard Castellini and Defendant Harley G. Lappin hereby jointly move to continue the Status Conference scheduled for Friday, May 20, 2005 in the above-referenced matter to June 1, 2005. As grounds for this Motion the Parties state as follows:
1. On April 12, 2005, the Court allowed Plaintiff’s Motion for a Temporary Restraining Order and/or Preliminary Injunction.
2. On May 4, 2005, a Status Conference was held. The parties reported that they had recently initiated settlement discussions which could result in the disposition of this case. The parties agreed to continue these discussions and report back to the Court on May 20, 2005.
3. Since May 4th, the parties have conferred and are in substantial agreement on a resolution to this dispute. The terms of a settlement agreement are currently being negotiated. While an agreement has not yet been reached, the parties anticipate that an agreement will be forthcoming within the next week. Thus, the parties jointly request that the May 20th Status Conference be continued to June 1, 2005, at which time the parties expect to report to the Court that this matter has been settled.

CONCLUSION WHEREFORE the parties request that the Court allow the instant Motion and continue the May 20th Status Conference to June 1, 2005.

Respectfully submitted,

HARLEY G. LAPPIN

RICHARD

CASTELLINI

By his attorney,

By

his attorneys,

MICHAEL J. SULLIVAN United States Attorney

/s/ Rayford A. Farqhuar Rayford A. Farqhuar Assistant U.S. Attorney 1 Courthouse, Suite 9200 Boston, MA 02210 (617) 748-3284
Boston, (617)

/s/ Ja
Da
GOODW Exchange

David S. Schumacher mes C. Rehnquist (BBO # 552602) vid S. Schumacher (BBO # 647917) Sheryl A. Koval (BBO # 657735)
IN PROCTER LLP Place Massachusetts, 02109 570-1000

Dated: May 19, 2005

OF COUNSEL: Stephen Galoob GOODWIN PROCTER LLP 901 New York Avenue N.W. Washington, D.C. 20001 (202) 346-4000

Local Rule 7.1(A)(2) Certification Pursuant to Local Rule 7.1(A)(2), the undersigned certifies that counsel have conferred in good faith to resolve or narrow the issues raised in this motion, and that the parties jointly reached the agreement represented above.

Certificate of Service I hereby certify that a true copy of the above document was served upon counsel for defendants by facsimile and first-class mail on May 19, 2005.

LIBA/1549220.1

/s/ David S. Schumacher______________ David S. Schumacher

2

 </s> UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

RICHARD CASTELLINI,

Plaintiff,

v.
HARLEY G. LAPPIN (in his official capacity as Director of the Bureau of Prisons),

Civil Action No. 05-10220-PBS

Defendant.

STIPULATION OF DISMISSAL WITH PREJUDICE AND WITHOUT COSTS AND INTEREST
Pursuant to Fed. R. Civ. P. 41 (a)(1) the parties move this Honorable Court to dismiss this action with prejudice and without costs and interest.

Respectfully submitted,
For the Plaintiff,
By his attorney,
es C. Rehnq . t, Esq. avid S. Schuma her, Esq. Counsel for the Plaintiff Goodwin Procter LLP. Exchange Place Boston, MA 02109 (617) 570-1000

For the Defendant,
MICHAEL J. SULLIVAN, United States Attorney
7~.4.hL
RAYFORD A. FARQUHAR Assistant U.S. Attorney 1 Courthouse, Suite 9200 Boston, MA 02210 (617) 748-3100

 </s> Case 1:05-cv-10220-PBS Document 1-1 Filed 02/03/2005 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

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RICHARD CASTELLINI Plaintiff:

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PlaintiJT Richard Castellini ("Mr. Castellini"), for his Verified Complaint, hereby alleges

as follows:

INTRODUCTION Plaintiff brings this action to enjoin the Bureau of Prisons ("BOP") from etTectuating its decision to terminate the Shock Incarceration Program, which it publicly announced on January 14, 2005. The BOP's abrupt and unilateral decision violates both the United States Constitution and the Administrative Procedure Act. The BOP is merely an administrative agency, and does not have the legal authority to terminate this program, which was created by Congress and must remain in operation unless and until Congress decrees otherwise. In addition, the BOP's decision violates the notice-and-comment requirement of the Administrative Procedure Act, 5 U.S.C. § 553, and the Ex Post Facto clause of the U.S. Constitution.

JURISDICTION AND VENUE 1. This case arises under the United States Constitution and the laws of the United States, and presents a federal question within this Court's jurisdiction under Article III of the

Case 1:05-cv-10220-PBS Document 1-1 Filed 02/03/2005 Page 2 of 15

United States Constitution and 28 U.S.C. § 13 31. This Court has jurisdiction to n~view agency action pursuant to the Administrative Procedure Act, 5 U.S.C. § 702.

2.

Venue is proper in this District under 28 U.S.C. § 139!(e)(2), as a substantial part

of the events or omissions giving rise to this claim occurred here.

PARTIES

3.

Plaintiff Richard Castellini is an individual residing in New Jersey, with his wife

and Ihree children. Mr. Castellini operates a business called Island Marine Center, which sells

and services boats.

4. Defendant Harley G. Lappin is the Director of the BOP.

BACKGROUND The Shock Incarceration Program

5. The Shock Incarceration Program, administered as the Intensive Confinement Center ("ICC") program by the BOP, was established by an act of Congress in !990. 1 Under 18 U.S.C. § 4046, Congress authorized the BOP to reduce the sentences of inmates who successfully participated in an initial, six-month period of"strict discipline, physical training, hard labor, drill, and ceremony characteristic of military basic training."

The text of 18 U.S.C. § 4046 provides as follows:
(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 mon~ 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--
(I) 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 n!quired by law to be served by that inmate), and under such conditions, as the Bureau deems appropriate.
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6.

This statute was the subject of an t!Xtensive congressional hearing during which

the House of Representatives heard testimony from a number of witnesses, including the BOP

and state oflicials operating Shock Incarceration Programs. According to the House Report

accompanying the bill, the proposed legislation was based on the following findings: (I) the

overcrowded state of federal prisons; (2) the success of Shock Incarceration Programs in

reducing costs; (3) the fact that recidivism rates for participants in these programs were no

greater than that of ordinary inmates; (4) the self-esteem, discipline and other virtues instilled by these programs; and (5) the inmate follow-up provisions that would be a component of the

federal program.

7.

The House Report also spoke directly to the need for legislative action in creating

a Shock Incarceration Program-as opposed to letting the BOP create the program through

administrative channels:

[T]he Bureau of Prisons does not have the legal authority necessary to operate a Shock Incarceration Program. 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 lncarcera1tion Program is based upon an inmate serving a shorter, but mon: arduous, term. Legislation is necessary, therefore, if there is to be a Federal Shock Incarceration Program.

See House Report No. 101-681., reported at 1990 U.S.C.C.A.N. 6472,6557-60.

8.

The House Report also contemplates the possible use by the BOP of analogous

state programs. Congress addressed the possibility that the Shock Incarceration Program would

fail. In particular, Congress addressed an objection raised by the BOP that the program would

fail because too few prisoners would be eligible. The majority of legislators passing the bill responded as follows: "[i]f this proves to be the case, the Director can, consistent with this

legislation and under authority given the Director by 18 U.S.C. 4042, contract with States that

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oper~te shock incarceration programs to place eligible Federal prisoners in State boot camp prisons." !d., at 6621 n.6.
9. The BOP has discharged its responsibility to administer the Shock Incarceration Program by the use of ICCs, which combine the features of a military boot camp and a traditional prison. The BOP began placing inmates in ICC facilities in the early 1990s. According to a BOP Program Statement, the purpose of the ICC Program is "to place inmates in a highly structured environment as a means of promoting personal development, self-control, and discipline, thereby reducing the potential for recidivism." See BOP Program Stakment 5390.08, § 7(a) ("P.S. 5390.08"). The BOP currently operates three ICCs: in Lewisburg, Pennsylvania, Lompoc, California and Bryan, Texas.
I0. The ICC Program has strict eligibility requirements. It is only available to prisoners sentenced to a term of more than 12 but fewer than 30 months. It is only available to first-time offenders who did not commit a crime of violence. See 28 C.F.R. § 524.31 (a)(! )-(3). The inmate must be cleared for housing in a minimum security facility, be physically and mentally capable of participating in the program, and must volunteer for the program. Sec 28 C.F.R. § 524.31(a)(4)-(6). An inmate may be designated to the ICC Program via a recommendation from the sentencing judge or by the BOP's own determination. !See P.S. 5390.08, § 9(a). While the sentencing judge's recommendation is taken into consideration, the final decision on placement rests with the BOP Regional Designators. 1.9.,, § 9(b).
II. The "boot camp··· phase of the ICC Program lasts six months. See 28 C.F.R. § 524.32(b). Inmates are placed in single-gender facilities where they undergo a strict daily regimen. The 17-hour day includes physical conditioning, military drill and ceremony and labor-
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intensive work assignments. See P.S. 5390.08, § 7(b). In addition, the program offers education, drug and alcohol counseling and other life-management skills. !d.
12. There are a number of benefits available to an inmate who is placed in, and successfully completes, the Shock Incarceration Program. First, after serving six months in an ICC, the inmate may be transferred to a Community Corrections Center ("CCC"), often in the inmate's home community, for a period of two to six months. See 28 C.F.R. § 524.32(d)(l); P.S. 5390.08, § 15-16. If the inmate successfully completes this CCC p011ion of the sentence, he or she may serve the remainder of the sentence in home confinement. See P.S. 5390.08, § !6(a). Importantly, upon successful completion of the Shock Incarceration Program and the CCC portion of a sentence, the inmate is eligible for up to a six-month reduction in his or her sentence. ld., § 524.32(d)(2).
13. The BOP has, until recently, described the Shock Incarceration Program in glowing terms. For instance, in an internal analysis of ICC graduates, the BOP touted the substantial cost savings of shock incarceration inmates vis a vis non-ICC inmates. See BOP Office of Research and Evaluation, "Evaluation of Post-Release Success for the First 4 Classes Graduating from the Lewisburg Intensive Confinement Center," November 15, 1996, at l-2. This document also notes the various "benefits" of returning low-risk offenders to their families. !d. at 2. Furthermore, the internal analysis notes that the recidivism rate for shock incarceration graduates is ·'substantially lower" than graduates of similar state boot camp program, id. at 6, and described ''the ICC's demonstrated success regarding low rearrest rates ..." !d. at 7.
14. Earlier, the BOP Director sent a memorandum to all chief federal judges imploring them to encourage district judges to recommend the Shock Incarceration Program for appropriate female defendants. See Memorandum from Kathleen M. Hawk to Chief Federal
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Judges, April 11, 1994. In the memo, Ms. Hawk described the "successful development of this project" and claimed that she was "very proud of what our staff in the ICC at Bryan have accomplished." !d., at I. Ms. Hawk was "personally convinced ... that the ICC program has much to otTer to female offenders." !d., at 2.
15. Indeed, less than six months prior to the unilateral termination of the program, the ICC Administrator sent an information packet to chief federal judges describing the Shock Incarceration Program and encouraging them to disseminate the information to "anyone who has questions about the program." See Letter from Dave Moffat to Hon. Joseph A. Giacobbe, July 28, 2004.
The Sentencing Judge Recommends the ICC Program for Mr. Castellini 16. Mr. Castellini was indicted by a grand jury in the District of Massachusetts on March 29, 200 I, charged with money laundering and money laundering conspiracy based on his ensnarement in an Internal Rev,~nue Service sting operation focusing on tax evasion via the use of off-shore trusts. After a two--week trial in July 2002, he was convicted of two violations of the money laundering sting provision, 18 U.S.C. § 1956(a)(3) and one count of conspiracy to launder money, 18 U.S.C. § 1956(h). 17. A sentencing hearing was scheduled for August 12,2003. Prior to the hearing, Mr. Castellini's probation offic,~r. U.S.P.O. Emily Piovoso, encouraged Mr. Caste:IIini to consider serving his sentence in the ICC Program. Mr. Castellini was enthusiastic about the option. 18. At the sentencing hearing, Mr. Castellini received a sentence of21 months imprisonment. Because of his age, the nonviolent nature of his offense, the length of his sentence, and his lack of any criminal history, Mr. Castellini met all of the then-existing
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eligibility criteria for admission to the BOP's Shock Incarceration Program. See 28 C.F.R. § 524.31. Indeed, had Mr. Castellini successfully completed the Shock Incarceration Program and the subsequent CCC term, his s·entence would have been reduced by live months. See P.S. 5390.08, § 16(a).
19. Mr. Castellini's sentence was stayed pending his appeal to the First Circuit. The First Circuit aftirmed his sentence and conviction on December 15, 2004.
20. On approximately December 20, 2004, Mr. Castellini' s counsel spoke with Michelle Ruane, an administrator for the ICC program at USP-Lewisburg. She advised that the next session of the Shock Incarceration Program would commence on February 15, and that openings were available for that session.
21. Mr. Castellini thus moved the district court to amend the judgment to include a recommendation that he be permitted to self-rep011 to the ICC at Lewisburg on February 14, 2005. The Motion was allowed on January 6, 2005.
The BOP Unilaterally Terminates the Shock Incarceration Program 22. On January 5, 2005, defendant Lappin sent an e-mail message to the entire BOP staff. Lappin stated that, due to budgetary pressures, he was instituting a number of "cost savings initiatives" for the next fiscal year. One of these initiatives was the cancellation of the Shock Incarceration Program. Lappin stated as follows: "Three Intensive Confinement Center (ICC) programs, currently operated at USPs Lewisburg and Lompoc and FPC Bryan, will be phased out and replaced with ordinary minimum security programs." As justification for this abrupt termination, Lappin stat<~d that "[t]he ICC programs are exceedingly costly to maintain and a substantial body of research indicates that they have no impact on reducing recidivism." Lappin stated that the lCCs would close for good on July 15,2005, after the last remaining
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inmates finished their term in the program. No further inmates would be accepted into the Shock Incarceration Program.
23. The BOP did not submit the decision to terminate the Shock Incarceration Program to the notice-and-comment procedures contained in the Administrative Procedure Act. See 5 U.S.C. § 553. On at least 40 prior occasions when the BOP has made changes to the Shock Incarceration Program, it followed these notice-and-comment provisions-even when the changes were largely ministerial. See, M., 68 Fed. Reg. 73157 (2003) (amending regulations as to its drug abuse treatment program); 64 Fed. Reg. 9428 (1999) (amending regulations relating to inmates' participation in program reviews); 61 Fed. Reg. 18658 (1996) (final rule adopting regulations relating to the operation of the ICC program).
24. On January 7, 2005, after Mr. Castdlini had received the recommendation from the sentencing judge, Mr. Castellini's counsel called Ms. Ruane at ICC Lewisburg to inquire about the program. She informed him that the program has been abruptly terminated.
25. On January 14, 2005, Lappin publicized the termination of the Shock Incarceration Program through a memorandum to federal judges, chief U.S. probation officers, federal public defenders and U.S. Attorneys in which he stated that no more inmates would be received in ICCs, effective immediately. See Memorandum from Harley G. Lappin, January 14, 2005 ("January 14, 2005 memo").
26. According to the January 14, 2005 memo, the Shock Incarceration Program was being terminated due to the failure to reduce recidivism rates and the expenses associated with the facilities' operation. See January 14, 2005 m(:mo, at 1-2. As support for thes·~ contentions, the memorandum links to two studies of state Shock Incarceration Programs.
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27. It is clear that the BOP's decision to terminate the program was made abruptly and unilaterally. On January 26, 2005, the Director of the Administrative Office of the United States Courts informed federal judges, federal public defenders, chief probation officers and chief pretrial services officers that the BOP was terminating the Shock Incarceration Program. The memorandum states as follows:
Unfortunately, this decision was made by the BOP without advance notice and without soliciting the views of the Judicial Conference, its Criminal Law Committee, the Administrative Office's Office of Probation and Pretrial Services, or chief probation and pretrial services officers. The Executive Committee of the Judicial Conference will take up this matter with the new Attorney General at a meeting planned for March, but we have assurance of the outcome because of the strong position of the BOP. See Memorandum from Leonaidas Ralph Mecham, Director of Administrative Office of the United States Courts, January 26, 2005. 28. On January 21,2005, Mr. Castellini's counsel spoke with the BOP Community Corrections Manager in Boston, who confirmed that the Shock Incarceration Program was shutting down. On the same day, Mr. Castellini's counsel spoke with an employee in the designations department at BOP's regional office in Philadelphia, who confirmed that the Shock Incarceration Program had been terminated, and that no more designations to the program were to be made. 29. Mr. Castellini has no administrative remedy at his disposal He may not utilize the BOP's Administrative Remedy Program because Mr. Castellini has not yet reported to the BOP to serve his sentence. As such, he is not (I) an "inmate" (2) being held in a BOP "institution" (3) who can present his issue to a member of the BOP "stati," as is r'~quired by applicable regulations. See 28 C.F.R. 500.l(b)-(d); 28 C.F.R. 542.13. For similar reasons, Mr.
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Castellini is not subject to the exhaustion procedures of the Prison Litigation Reform Act; Mr. Castellini is neither a "prisoner" nor is he incarcerated in an "institution" as those terms are defined by the statute. See 42 U.S.C § 1997; § 1997e; § 1997e(h).
30. Any attempt to exhaust administrative remedies, moreover, would be futile. First, according to the January 14, 2005 memo, the termination of the program, which was announced by the highest authority at the BOP, is certain. Second, the termination of the Shock Incarceration Program was announced only 32 days prior to Mr. Castellini's report date.
31. Mr. Castellini is currently due to self-report to prison on February 14, 2005. Absent injunctive relief, and the opportunity to participate in the ICC Program, Mr. Castellini will suffer irreparable harm not only to his family life but also to his business int<:rests.
COUNT I (Ultra Vires Agency Action) 32. Mr. Castellini repeats and reallcges the facts stated in Paragraphs 1-31 as if set forth separately herein. 33. A federal agency may only take actions consistent with its delegat<ed authority that do not conflict with express Congressional intent. 34. The Shock Incarceration Program was created by Congress. The text and legislative history of 18 U.S.C. § 4046 demonstrates that Congress not only created the Shock Incarceration Program but intended its continued operation. 35. Congress only delegated to the BOP the authority to implement th<e Shock Incarceration Program under the parameters set by Congress. The BOP does not have the power to terminate the Shock Incarceration Program. By terminating the Shock Incarceration Program, the BOP is unlawfully attempting to make basic and fundamental changes to a program created by Congress.
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36. By taking actions in excess of its delegated authority, the BOP's actions were ultra vires. Moreover, the BOP"'s actions cannot be defended on any "permissible construction" of its statutory authority.
37. The BOP's actions have directly harmed Mr. Castellini. lfthe unlawful termination is undisturbed, Mr. Castellini will not have the opportunity to be considered for admission to an ICC. Successful completion of the Shock Incarceration Program would have resulted, inter alia, in a five-month reduction in Mr. Castellini's sentence. See P.S. 5390.08, § 16(a).
COUNT II (Violation of APA Notice-and-Comment Requirements) 38. Mr. Castellini repeats and realleges the facts stated in Paragraphs 1-37 as if set forth separately herein. 39. Any actions taken by a federal agency that constitute legislative or substantive rulemaking are subject to the notice-and-comment procedures of the Administrative Procedure Act. See 5 U.S.C. § 553. Thes·~ procedures, include, inter alia, providing notice that it intends to change the law, providing a statement of authority, and allowing a comment period. See 5 U.S.C. § 553(b). Under§ 553(c), an agency must publish this notice at least 30 days before the effective date of the action. 40. On at least 40 prior occasions when the BOP has made changes to the Shock Incarceration Program, it has submitted those changes to the provisions of§ 553--even when those changes were largely ministerial. See,~, 68 Fed. Reg. 73157 (2003) (amending regulations as to its drug abuse treatment program); 64 Fed. Reg. 9428 (1999) (amending regulations relating to inmates' participation in program reviews); 61 Fed. Reg. 18658 (1996) (final rule adopting regulations relating to the operation of the Shock Incarceration Program).
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41. The BOP's decision to terminate the Shock Incarceration Program was a legislative or substantive rulemaking decision, rather than a mere interpretive rule or statement of

policy. 42.

The BOP terminated the Shock Incarceration Program without following any of

the notice-and-comment provisions contained in§ 553. 43. By failing to submit its decision for notice and comment, the BOP deprived
numerous interested parties-such as the Administrative Office of the United States Courts--of

airing their views relating to this abrupt decision.

COUNT III (Violation of Ex Post Facto Clause of the U.S. Constitution)
44. Mr. Castellini repeats and realleges the facts stated in Paragraphs 1-43 as if set

forth separately herein. 45. Article I of the United States Constitution prohibits the enactment of an ex post
facto law. A penal law is an ex post facto law if (I) it is retrospective and (2) it disadvantages

the offender affected by the law. 46. The BOP's termination of the Sho,:k Incarceration Program was an
unconstitutional ex post facto law. The action was retrospective because it applies, inter alia, to persons, such as Mr. Castellini, who had already been sentenced with a recommendation for

participation in an Shock Incarceration Program. Thus, the BOP's action changes the legal

consequences of acts completed before its effective date. 47. The BOP's actions also disadvantage Mr. Castellini. lfthe BOP's unlawful action
stands, Mr. Castellini will not able to serve his prison term in an ICC. Among other things, had Mr. Castellini successfully completed the Shock Incarceration Program and the subsequent CCC term, his sentence would have been reduced by five months.

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PRAYER FOR RELIEF Mr. Castellini requests that this Court: (I) Issue a temporary restraining order and preliminary and permanent injunctions:
a.) enjoining th(: BOP from effectuating its decision to terminate the Shock Incarceration Program;
b.) ordering the BOP to continue operation of its ICC Program consistent with its operation of the program before any decision was made to terminate the program; and,
c.) ordering the BOP to in good faith consider Mr. Castellini for placement in an ICC program pursuant to criteria that existed prior to the BOP's decision to terminate the program; or, as an alternative to the above,
d.) ordering the BOP to administer Mr. Castellini's sentence in a manner that affords him the advantages of the ICC program, including his being eligible for designation to a Community Confinement Center after six months and for a reduction in his sentence.
(2) Order such other relief as is just and proper.
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OF COUNSEL:
Stephen Galoob GOODWIN PROCTER LLP 901 New York Avenue N.W. Washington, D.C. 20001 (202) 346-4000
Dated: February 3, 2005

Respectfully submitted,
RICHARD CASTELLINI
By his attorney,
5~ 4)'
Ja C. Rehnquist (B 0 # idS. Schumacher (BBO /lt:7u:/7)
eryl A. Koval (BBO # 657735) GOODWIN PROCTER LLP Exchange Place Boston, Massachusetts 02109-2881 (617) 570-1000

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VERIFICATION I, Richard Castellini, and declare under pains and penalty of perjury that I have reviewed the foregoing Verified Complaint and that the factual allegations contained therein are true to the best of my knowledge and belief.

J , Dated: February 2005

Richard Castellini

LIBJ\/1448914.3

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United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:05-cv-10220-PBS

CLOSED

Castellini v. Lappin Assigned to: Judge Patti B. Saris Cause: 05:702 Administrative Procedure Act

Date Filed: 02/04/2005 Date Terminated: 06/01/2005 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Plaintiff Richard Castellini

represented by David S. Schumacher Goodwin Procter LLP Exchange Place 53 State Street Boston, MA 02109 617-570-1911 Fax: 617-523-1231 Email: dschumacher@goodwinprocter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Rehnquist Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 617-570-1820 Fax: 617-523-1231 Email: jrehnquist@goodwinprocter.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheryl A. Koval Goodwin Procter LLP Exchange Place 53 State Street Boston, MA 02109 617-570-1147 Fax: 617-523-1231 Email: skoval@goodwinprocter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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V.
Defendant
Harley Lappin in his official capacity as Director of the Bureau of Prisons

represented by Rayford A. Farquhar United States Attorney's Office John Joseph Moakley Federal Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617-748-3100 Fax: 617-748-3971 Email: rayford.farquhar@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/03/2005 02/03/2005 02/03/2005 02/03/2005 02/03/2005 02/03/2005 02/07/2005
02/09/2005 02/17/2005

#

Docket Text

1 COMPLAINT against Harley Lappin Filing fee: $ 150, receipt number 61829, filed by Richard Castellini. (Attachments: # 1 Civil Cover Sheet) (Patch, Christine) (Entered: 02/04/2005)

If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Bowler. (Patch, Christine) (Entered: 02/04/2005)

Summons Issued as to Harley Lappin. (Patch, Christine) (Entered: 02/04/2005)

2 MOTION for Temporary Restraining Order and/or Preliminary Injunction by Richard Castellini.(Patch, Christine) (Entered: 02/04/2005)

3 MEMORANDUM in Support re 2 MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by Richard Castellini. (Patch, Christine) (Entered: 02/04/2005)

Proposed Document submitted by Richard Castellini. Document received: Order. (Patch, Christine) (Entered: 02/04/2005)

4 NOTICE of Status Hearing: Status Hearing re: Motion for Temporary Restraining Order and/or Preliminary Injunction set for 2/17/2005 at 4:00 PM in Courtroom 19 before Judge Patti B. Saris. (Alba, Robert) (Entered: 02/07/2005)

Electronic Clerk's Notes for proceedings held before Judge Patti B. Saris: Status Conference held on 2/9/2005. (Court Reporter Jim Gibbons.) (Alba, Robert) (Entered: 02/09/2005)

Electronic Clerk's Notes for proceedings held before Judge Patti B. Saris: Status Conference held on 2/17/2005. Government to file opposition to Motion for TRO by 3/4/05. Hearing on Motion for TRO set for

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03/02/2005 03/04/2005 03/11/2005
03/18/2005 04/12/2005
04/22/2005 04/25/2005 04/27/2005 05/04/2005 05/19/2005

3/11/2005 at 2:00 PM in Courtroom 19 before Judge Patti B. Saris. (Court Reporter Marie Cloonan.) (Alba, Robert) (Entered: 02/17/2005)
5 AFFIDAVIT OF SERVICE Executed by Richard Castellini. Harley Lappin served on 2/9/2005, answer due 3/1/2005. Acknowledgement filed by Richard Castellini. (Attachments: # 1 Exhibits A - D)(Koval, Sheryl) (Entered: 03/02/2005)
6 Opposition re 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Harley Lappin. (Attachments: # 1 # 2 # 3)(Farquhar, Rayford) (Entered: 03/04/2005)
Electronic Clerk's Notes for proceedings held before Judge Patti B. Saris: Motion Hearing held on 3/11/2005 re 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Richard Castellini. Court hears argument of counsel. Counsel to file supplemental briefs. Court takes motion under advisement. (Court Reporter Lee Marzilli.) (Alba, Robert) (Entered: 03/11/2005)
7 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Richard Castellini. (Attachments: # 1 Exhibit A)(Schumacher, David) (Entered: 03/18/2005)
8 Judge Patti B. Saris: MEMORANDUM AND ORDER entered re: 2 Motion for Temporary Restraining Order and/or Preliminary Injunction....IV. ORDER Plaintiff's motion for a preliminary injunction (Docket No. 2) is ALLOWED. The Bureau of Prisons is enjoined from terminating the Shock Incarceration (or Intensive Confinement Center) Program until it has complied with the Administrative Procedure Act and shall in good faith consider plaintiff?s eligibility for the Shock Incarceration Program. (See Memorandum and Order for full text) (Alba, Robert) (Entered: 04/12/2005)
9 MOTION for Order to schedule status conference by Harley Lappin. (Farquhar, Rayford) (Entered: 04/22/2005)
Judge Patti B. Saris: Electronic ORDER entered allowing 9 MOTION for Order to schedule status conference by Harley Lappin. "ALLOWED. A STATUS CONFERENCE WILL BE HELD ON MAY 3, 2005, AT 10:00 A.M." (Alba, Robert) (Entered: 04/25/2005)
10 NOTICE OF RESCHEDULED STATUS CONFERENCE. The Status Conference previously scheduled for May 3, 2005, has been rescheduled to May 4, 2005, at 10:00a.m. in Courtroom 19 before Judge Patti B. Saris. (Alba, Robert) (Entered: 04/27/2005)
Electronic Clerk's Notes for proceedings held before Judge Patti B. Saris : Status Conference held on 5/4/2005. Further Status Conference set for 5/20/2005 at 2:00 PM in Courtroom 19 before Judge Patti B. Saris. (Court Reporter Marie Cloonan.) (Alba, Robert) (Entered: 05/04/2005)
11 Joint MOTION to Continue Status Conference to June 1, 2005 by Richard Castellini, Harley Lappin.(Schumacher, David) (Entered:

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Judge Patti B. Saris: Electronic ORDER entered allowing 11 Motion to Continue. "ALLOWED. THE STATUS CONFERENCE IS CONTINUED TO JUNE 1, 2005, AT 3:30 P.M." (Alba, Robert) (Entered: 05/19/2005)
ReSet Hearings: Status Conference set for 6/1/2005 at 3:30 PM in Courtroom 19 before Judge Patti B. Saris. (Alba, Robert) (Entered: 05/19/2005)
12 MOTION for Order to cancel today's hearing (in form of letter from R. Farquhar, filed with Clerk's Office at 11:45 a.m. today) by Richard Castellini, Harley Lappin.(Farquhar, Rayford) (Entered: 06/01/2005)
13 Judge Patti B. Saris: 60 Day Settlement ORDER of Dismissal entered. (Alba, Robert) (Entered: 06/01/2005)
14 TRANSCRIPT of Status Conference held on May 4, 2005 before Judge Saris. Court Reporter: Marie L. Cloonan. The original transcripts are maintained in the case file in the Clerk's Office. Copies may be obtained by contacting the court reporter at 617/439-7086 or the Clerk's Office. (Scalfani, Deborah) (Entered: 06/02/2005)
15 STIPULATION of Dismissal by Harley Lappin. (Farquhar, Rayford) (Entered: 06/23/2005)

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[CONTENT] February 3, 2005 | Richard Castellini | 21 months | the U.S. District Court | Massachusetts | the Federal Bureau of Prisons ||| the Bureau of Prisons | APA | 5 | U.S.C. | 553 | the Ex Post Facto Clause | U.S. |||  |||  ||| 3 ||| April 12, 2005 | the District Court | Patti B. Saris | the Federal Bureau of Prisons | Shock Incarceration | the Administrative Procedure Act | Program |||  ||| June 23, 2005 | Court ||| Court [SUMMARY] On February 3, 2005,  Plaintiff Richard Castellini, who was sentenced to 21 months in prison for money laundering with a recommendation that his sentence be served in the federal boot camp program, filed a lawsuit in the U.S. District Court for the District of Massachusetts, seeking a temporary restraining order and/or preliminary injunction to prevent the Federal Bureau of Prisons from terminating the boot camp program. Plaintiff alleged that the Bureau of Prisons violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, and the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3. when it announced that it was terminating the boot camp program due to budgetary pressures.

On April 12, 2005, the District Court (Judge Patti B. Saris) issued a preliminary injunction, enjoining the Federal Bureau of Prisons from terminating Shock Incarceration until it had complied with the Administrative Procedure Act and in good faith considered plaintiff's eligibility for the Program.  After the injunction was issued, the parties initiated settlement discussions.  On June 23, 2005, the parties filed a stipulation for dismissal with the Court.  The terms of the settlement are unknown as the agreement was not filed with the Court.

