The opinion of the court was delivered by: Judge McClure
November 30, 2009 Petitioner Paul Mangiardi ("Petitioner" or "Mangiardi"), an inmate confined at the Federal Prison Camp at the Federal Correctional Institution at Schuylkill ("FPC Schuylkill") in Minersville, Pennsylvania, initiated the above action pro se by filing a petition for writ of habeas corpus ("petition") under 28 U.S.C. § 2241. He challenges the Federal Bureau of Prisons ("BOP")'s determination that he is ineligible to participate in the Elderly Offender Home Detention Pilot Program ("EOHDPP") authorized by the Second Chance Act ("SCA"). He also claims that the BOP has failed to award him with credit for all of the Good Conduct Time ("GCT") he has earned. The petition is fully briefed and ripe for review.
I. Factual and Procedural Background
On December 10, 1998, the United States District Court for the Middle District of Pennsylvania sentenced Mangiardi to an aggregated term of 151 months incarceration for violating 18 U.S.C. § 371, Conspiracy, and 18 U.S.C. § 1341, Mail Fraud. (Painter Decl., Rec. Doc. No. 8-2 at 3 ¶ 3; Public Info. Inmate Data, Rec. Doc. No. 8-2 at 9.) On April 24, 2000, Mangiardi self surrendered to BOP authorities at the Federal Correctional Institution in Fort Dix, New Jersey, for the service of his federal sentence. (Rec. Doc. No. 8-2 at 3 ¶ 4.) He received one (1) day of prior custody credit for November 17, 1995. (Id.) His projected release date is April 10, 2011, via good conduct time release. (Id. ¶ 3.)
Mangiardi makes two claims in his petition. First, he claims that the BOP's determination that his Good Conduct Time ("GCT") should not be considered in determining his eligibility for participation in the EOHDPP is inconsistent with the provisions of the SCA. (Rec. Doc. No. 1 ¶¶ 4-10.) His second claim is that the BOP failed to award him GCT for work he performed assisting in flood relief in Gilberton, Pennsylvania and for extra work he performed in the chapel area. (Id. ¶ 11.) As relief, Mangiardi requests that his GCT be included in considering his eligibility for release to home confinement through the EOHDPP and that this Court direct his immediate release to home confinement. (Id. ¶ 16.)
Service of the petition was directed by Order dated October 6, 2009. (Rec. Doc. No. 7.) On October 26, 2009, Respondent filed an answer to the petition, accompanied by declarations of Richard Painter, a BOP Case Manager at FPC Schuylkill, and Adam J. Ackley, a BOP Attorney Advisor at the Consolidated Legal Center, in Allenwood, Pennsylvania, several exhibits, and a copy of an opinion cited in the answer.*fn1 (Rec. Doc. No. 8.) Petitioner filed his reply on November 5, 2009. (Rec. Doc. No. 9.)
The SCA, which was signed into law on April 9, 2008, mandated that the Attorney General, in coordination with the Director of the BOP, create a federal prisoner re-entry initiative. Pub. L. No. 110-199 (codified at 42 U.S.C. § 17541). Among these initiatives is the creation of the EOHDPP, to be conducted by the Attorney General, "to determine the effectiveness of removing eligible elderly offenders from a Bureau of Prisons facility and placing such offenders on home detention until the expiration of the prison term to which the offender was sentenced."
42 U.S.C. § 17541(g). The statute sets forth seven (7) criteria which an offender in BOP custody must meet in order to be considered an "eligible elderly offender." 42 U.S.C. § 17541(g)(5)(A)(i)-(vii).*fn2 At issue in this case is whether the BOP's determination that GCT is not to be considered in determining whether an offender has "served the greater of 10 years or 75 percent of the term of imprisonment to which [he] was sentenced" is inconsistent with the SCA. See 42 U.S.C. § 17541(g)(5)(A)(ii).
III. BOP Operations Memorandum
On February 5, 2009, the BOP issued Operations Memorandum 003-2009 (5392), Elderly Offender Home Detention Pilot Program ("BOP Memorandum"), to provide guidance to BOP staff for administering the pilot program authorized by the SCA at BOP facilities nationwide. (Painter Decl., Rec. Doc. No. 8-2 at 3 ¶ 5; BOP Memorandum, Rec. Doc. No. 8-2 at 13.) The BOP Memorandum specifies that, "[i]n accordance with the [Second Chance] Act, inmates must meet all statutory eligibility criteria to participate in the pilot program." (Doc. 8-2 at 14 § 2 c.) Section 3 of the BOP Memorandum sets forth the statutory eligibility criteria, including age, eligibility based on length of sentence and amount of time served, eligibility based on the inmate's current and prior conviction(s), and history of escape from a Bureau Institution. (Id. at 15-18 § 3.) Section 4 of the BOP Memorandum, entitled "Inmate Assessment," provides as follows:
If an inmate meets the statutory criteria described in Section 3, staff next consider whether the inmate is appropriate to participate in the pilot program. This determination is within the discretion of the Bureau staff, using sound correctional judgment, and based on information the Bureau uses to make classification and programming decisions, pursuant to Section 231(g)(5)(iv)*fn3 of the [Second Chance] Act. (Id. at 18 § 4 (emphasis in original).) Section 4 of the Memorandum contains a "non-exhaustive list of factors to be considered for "each inmate who meets the statutory criteria", including history of violence; escape or attempted escape from a non-Bureau facility; factors which may make an inmate a flight risk, including federal, state, or local detainers, service of a concurrent sentence, or a Public Safety Factor of alien; service of terms for violations of supervised release or parole; custody classification scoring items that may indicate the inmate presents an unacceptable risk of committing further crimes or endangering persons in the community; institution adjustment, including disciplinary action, which may indicate an inmate's inability or unwillingness to comply with conditions that would accompany home detention; medical or psychiatric issues; and any other issues deemed relevant to the inmate's ability to comply with conditions of participating in the pilot program. (Id. at 18-19 § 4.) The Memorandum provides that "[a]ny one factor, or combination of factors, may result in staff deciding the inmate is not appropriate to participate in the pilot program." (Id. at 19 § 4.) The entire packet of each inmate who is deemed as eligible for ...