The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter.
Petitioner Eric Murray, a federal prisoner incarcerated at the Federal Correctional Institution at McKean ("FCI-McKean") in Bradford, Pennsylvania, brings this petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging the Bureau of Prisons' (the "BOP's") determination that he is not eligible for a reduction in sentence under 18 U.S.C. § 3621(e)(2)(B). He claims that the BOP improperly excluded him from early release eligibility based upon the fact that he had previously received that statute's early release benefit during a prior federal incarceration. Plaintiff contends that the rule applied to him to automatically deny him early release -- Paragraph 5(c), Prior Early Release Granted, of Program Statement 533.01 -- was invalidated by this Court's prior decision in Burkey v. Lappin, 2007 WL 4480188 (W.D.Pa. Dec. 14, 2007), as a violation of the Administrative Procedures Act, 5 U.S.C. § 553 ("APA"). Petitioner has also filed a motion for temporary and permanent injunction asserting the same argument. [ECF No. 1]. As relief, Petitioner seeks an order directing the BOP to invalidate its policy limiting inmates to one sentence reduction, as well as reconsideration for early release.
A. Statutory and Regulatory Background
In 1990, Congress amended 18 U.S.C. § 3621 by directing the BOP to provide residential substance abuse treatment programs for prisoners determined to have a treatable condition of substance addiction or abuse. See Crime Control Act of 1990, Pub.L.No. 101-647, § 2903, 104 Stat. 4789, 4913 (codified at 18 U.S.C. § 3621(b)). On September 13, 1994, Congress enacted the Violent Crime Control and Law Enforcement Act ("VCCLEA") (Pub.L. 103-322), which added a new provision to 18 U.S.C. § 3621 that provides an incentive for inmates to participate in substance abuse treatment programs. This incentive allows an inmate to receive a reduction in his or her sentence of up to one year for completing a BOP treatment program. The statute provides:
Period of Custody... The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.
18 U.S.C. § 3621(e)(2)(B).
Congress did not define the eligibility criteria for early release consideration upon completing a residential drug abuse program ("RDAP"). Thus, on May 25, 1995, the BOP published an interim rule, effective June 26, 1995, which was designed to implement the sentence reduction provisions of the VCCLEA. See 60 Fed.Reg. 27692-01. The interim rule defined the categories of inmates that would be precluded from early release under 18 U.S.C. § 2621(e):
CONSIDERATION FOR EARLY RELEASE. An inmate who completes a RDAP during his or her current commitment may be eligible for early release by a period not to exceed 12 months, in accordance with paragraph (a) of this section, unless the inmate is an INS detainee, a pretrial inmate, a contractal boarder (for example, a D.C., State, or military inmate), or eligible for parole, or unless the inmate's current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3), or unless the inmate has a prior federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault.
60 Fed.Reg. 27695 (May 25, 1995).
In response to both public comment and a division among the courts of appeals over the BOP's interpretation of Section § 3621(e)(2)(B)'s term "nonviolent offense," the BOP issued a revised interim rule on May 17, 1996 (61 Fed.Reg. 25121) and, again, on October 15, 1997 (62 Fed.Reg. 53690). See Lopez, 531 U.S. at 233-36.
On December 22, 2000, after notice and comment, the 1997 version of the interim rule was made final, see 65 Fed.Reg. 80749, and that rule is set forth at 28 C.F.R. § 550.58. In relevant part, the regulation provides: "[a]n inmate who was sentenced to a term of imprisonment pursuant to the provisions of 18 U.S.C. Chapter 227, Subchapter D for a non-violent offense, and who is determined to have a substance abuse problem, and who successfully completes a residential drug abuse treatment program during his or her current commitment" may be eligible for early release by a period not to exceed 12 months. 28 C.F.R. § 550.58. The regulation also provides that: "[a]n inmate who has successfully completed a Bureau of Prisons residential drug abuse treatment program on or after October 1, 1989 is otherwise eligible if:
(i) the inmate completes all applicable transitional services programs in a community-based program (i.e., in a Community Corrections Center or on home confinement); and (ii) since completion of the program, the inmate has not been found to have committed a 100 level prohibited act and has not been found to have committed a prohibited act involving alcohol or drugs." Id. § 550.58(a)(3)(i) & (ii).
28 C.F.R. § 550.58 also categorically denies Section 3621(e)(2)(B)'s early release to the following groups of inmates, even if an inmate otherwise meets eligibility criteria: (i) INS detainees; (ii) pretrial inmates; (iii) contractual boarders (for example, D.C., State, or military inmates); (iv) inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses; (v) inmates who are not eligible for participation in a community-based program as determined by the Warden on the basis ...