LOEFFLER v. BUREAU OF PRISONS

GABRIEL GORENSTEIN, Magistrate Judge

Menachem Loeffler, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Loeffler is currently an inmate at the Federal Correctional Institution in Otisville, New York. The parties have consented to the disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

BACKGROUND

Loeffler pled guilty to one count of health care fraud under 18 U.S.C. § 1347 and was sentenced to 18 months in prison pursuant to a judgment of conviction entered on June 9, 2003. See Judgment (reproduced as Ex. B to Declaration of Stephanie Scannell, filed Aug. 18, 2004 (Docket #11) ("Scannell Decl.")); Sentence Monitoring Computation Data, dated July 29, 2004 ("Sentence Report") (reproduced as Ex. C to Scannell Decl.), at 1. He began serving his sentence on August 11, 2003.

Under 18 U.S.C. § 3624, prisoners who have "displayed exemplary compliance with institutional disciplinary regulations" may earn "good conduct time" ("GCT") toward the service of their sentence. 18 U.S.C. § 3624(b)(1). The GCT is subtracted from the prisoner's sentence, entitling the prisoner to be released before the prisoner's term of sentence is completed.See 18 U.S.C. § 3624(a).

During his confinement, Loeffler received a sentence monitoring report dated July 29, 2004 projecting that Loeffler would be entitled to 70 days of GCT. See Sentence Report at 1; Memorandum in Support of Petition for Writ of Habeas Corpus ("Pet. Mem."), filed August 5, 2004 (Docket #6), at 2. Based on this projection, Loeffler could expect to be released as early as December 1, 2004, rather than on the expiration of his actual sentence on February 9, 2005. See Sentence Report at 1.

Loeffler, however, contends that the Bureau of Prisons ("BOP") has improperly interpreted 18 U.S.C. § 3624 as requiring that GCT be calculated according to the amount of time that an inmate serves. Petition for Writ of Habeas Corpus by a Person in Federal Prison, filed June 21, 2004 (Docket #1), at 2-3. Loeffler argues that the proper reading of the federal statute requires GCT to be calculated on the basis of an inmate's sentence as imposed in the judgment of conviction. Id. at 3. Under this formula, Loeffler asserts he would be entitled to 81 days of GCT, id., 11 more days of GCT than the BOP calculation provides.

Loeffler filed this petition for a writ of habeas corpus on June 21, 2004 and later filed a memorandum of law in support. The respondent opposed the petition in papers filed August 13, 2004. Loeffler filed a traverse on September 3, 2004. For the reasons stated below, the petition is denied.

II. DISCUSSION

A. Legal Framework

1. Good Conduct Time

18 U.S.C. § 3624(a) grants federal prisoners the right to receive credit toward their sentences for good behavior. The pertinent portion of the statute provides:

[A] prisoner who is serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. . . . [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

18 U.S.C. § 3624(b).

The Bureau of Prisons has interpreted section 3624 to require that GCT be awarded on the basis of time actually served by the inmate rather than on the basis of the sentence imposed. Thus, under the BOP's interpretation of the statute, a prisoner is not entitled to receive GCT for any time that he would not actually serve. The calculation used to determine how much time a prisoner will actually serve in prison is laid out in detail in Program Statement 5880.28, Sentencing Computation Manual CCA, dated July 19, 1999 (reproduced as Ex. E. to Scannell Decl.). An example in the Program Statement demonstrates how GCT is determined for a sentence of 366 days — the minimum sentence under section 3624(a) entitling an inmate to GCT. Id. at pp. 1-45 — 1-47. The calculation is a complex one but the net result is simple to understand: a prisoner who is sentenced to 366 days in prison must serve 319 days and may receive up to 47 days of GCT. This is because each day served (319) is multiplied by 54/365 or 0.148, yielding a total of 47 days. Thus, after serving 319 days, the prisoner will have earned 47 days of GCT at the rate of 0.148 days for each day served. Accordingly, a sentence of 366 days results in the prisoner serving 319 days and receiving 47 days of GCT.

The disputed element of the BOP's calculation is that it permits GCT to be earned only for days actually served by the prisoner. Under Loeffler's proposed calculation, he would not earn the GCT day-by-day, but rather would receive the GCT based on his projected sentence as fixed by the sentencing court. Thus, Loeffler proposes that in the above example, the prisoner should receive 54 days of GCT and only be required to serve 312 days.

2. Judicial Review of an Agency's Construction of a Statute

In Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the Supreme Court gave the following guidelines to determine the construction of a statute that has been the subject of an administrative agency's interpretation:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Id. at 843. Thus, "[i]f a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Id. at n. 9. However, if Congress has not clearly spoken to the issue, authority to fill in the gap is delegated to the agency and the court must defer to the agency's interpretation, unless its interpretation is "arbitrary, capricious, or manifestly contrary to the statute." Id. at 843-44. The Supreme Court's later decision inUnited States. v. Mead Corp., 533 U.S. 218 (2001), made it clear that only certain agency interpretations are entitled to full Chevron deference. Id. at 226-227. But as Mead did not affect the first step of the Chevron analysis, we must first determine whether Congress has spoken directly on the question at issue.

B. Interpretation of 18 U.S.C. § 3624

1. Statutory Text

Loeffler argues that the phrase "term of imprisonment" is unambiguous. See Pet. Mem. at 3. He contends that "term of imprisonment" as used in section 3624(b) is synonymous with "sentence imposed" — not "time served" — and demonstrates Congress' intent for prisoners to receive up to 54 days of credit for each year of the sentence actually imposed upon them. Id. Read in isolation, the phrase might bear the reading that Loeffler seeks inasmuch as the phrase "term of imprisonment" could reasonably be used to refer to the sentence imposed. On the other hand, the phrase — again taken alone — could also reasonably be used to mean "time served." Because it could bear both meanings, the phrase is inherently ambiguous.

There is more support for Loeffler's contention if the phrase is read in context with certain other parts of the statute. For example, section 3624(a) states that each prisoner "shall be released on the date of expiration of the prisoner's term of imprisonment, less any time credited toward the service of the prisoner's sentence [i.e., GCT]." 18 U.S.C. § 3624(a). Thus, in this portion of section 3624(a), the phrase "term of imprisonment" must be synonymous with "sentence imposed" as the provision would make no sense were it to be interpreted otherwise. "It is a settled principle of statutory construction that when the same word or phrase is used in the same section of an act more than once, and the meaning is clear as used in one place, it will be construed to have the same meaning in the next place." United States v. Nunez, 573 F.2d 769, 771 (2d Cir.) (internal citation and quotation omitted), cert. denied, 436 U.S. 930 (1978);accord Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995).

The problem with Loeffler's argument is that the phrase is not, in fact, used consistently throughout the statute to mean "sentence imposed." Section 3624(d) requires the BOP to provide prisoners with clothing, funds, and transportation when they are released "on the expiration of the prisoner's term of imprisonment." In this context, it is clear that the phrase "term of imprisonment" can only mean the actual "time served" by the prisoner, as it would make no sense to provide these amenities at a time when the prisoner's original imposed sentence had expired — a date that would obviously occur after the prisoner had been released based on the good time credits. This provision alone dooms Loeffler's theory that the term must be construed in his favor because it bears a consistent meaning throughout the statute. Other courts interpreting section 3624 have found still other provisions of section 3624(b) to be inconsistent with "sentence imposed," though this Court does not view these other examples to be as obvious as the inconsistency represented by section 3624(d). See, e.g., Pacheco-Camacho v. Hood, 272 F.3d 1266, 1268 (9th Cir. 2001), cert. denied, 535 U.S. 1105 (2002); Graves v. Bledsoe, 2004 WL 1941231, at *1 (W.D. Va. Aug. 19, 2004); Pascuiti v. Drew, 2004 WL 1247813, at *3 (N.D.N.Y. June 2, 2004).

As a result, the meaning of "term of imprisonment" cannot be determined based on consistent usage throughout the statute. This Court thus rejects the reasoning of White v. Scibana, 314 F. Supp. 2d 834, 838 (W.D. Wis. 2004), which ruled that the BOP's method of GCT calculation was invalid, because White based its ruling on the conclusion that Congress "uniformly used `term of imprisonment' as a synonym for `sentence.'" Id. at 839. Notably, White does not mention the use of the term in section 3624(d) described above.

2. Legislative History

The Second Circuit has recently concluded that the role legislative history should play in the Chevron analysis is unclear. See Coke v. Long Island Care At Home, Ltd., 376 F.3d 118, 127 n. 3 (2d Cir. 2004) ("the Supreme Court has issued mixed messages as to whether a court may consider legislative history" in determining under Chevron whether Congress has expressed its intent unambiguously) (citing cases). In Loeffler's case, it would seem to make no difference at what point in the analysis we address the legislative history because — as will be discussed shortly — the legislative history does not shed any light on the specific dispute raised by Loeffler. If it is considered at step one of the Chevron analysis to determine the meaning of the phrase "term of imprisonment," it provides no elucidation. If considered at step two, it cannot be said that "the legislative history of the enactment shows with sufficient clarity that the agency construction is contrary to the will of Congress." Japan Whaling Ass'n v. Am. Cetacean Soc., 478 U.S. 221, 233 (1986) (citations omitted).

The early history of the statute is of no help to Loeffler. While it appears that the version of the good conduct time statute in effect between 1902 and 1948 contemplated the computation of good time credits based on the sentence imposed rather than time served, the former statute (18 U.S.C. § 4161 (repealed)) used the phrase "term of his [i.e., the prisoner's] sentence" not "term of imprisonment." See H.R. Rep. 86-935 (1959), reprinted in 1959 U.S.C.C.A.N. 2518, 2518-19. When Congress modified the statute in 1959, it did so, at least in part, because a 1952 court decision had interpreted a 1948 amendment to the statute — which provided that good time credits would be earned and computed monthly — as requiring that good time credits be based on time served, not the sentence imposed. See id. at 2159 (citing Hunter v. Facchine, 195 F.2d 1007 (10th Cir. 1952)). Concerned that granting credit on the basis of time served would "require well-behaved prisoners to serve longer periods of confinement than they would under the method of computing good conduct time which was followed between 1902 and 1948," Congress struck the phrase "to be credited as earned and computed monthly" from the statute. See Pub.L. No. 86-259, 73 Stat. 546 (1959).

Congress, however, completely rewrote the statute when it passed the Comprehensive Crime Control Act in 1984. Pub.L. No. 98-473, 98 Stat. 1976 (1984) (codified as amended in scattered sections of 18, 21, 28, 31, and 42 U.S.C.). The Comprehensive Crime Control Act made significant changes to criminal sentencing laws. One of the motivating forces behind the changes was Congress' concern regarding the lack of consistency in criminal sentences and the uncertainty of the amount of time any offender would spend in prison. See S. Rep. No. 98-225, at 38-39 (1983),reprinted in 1984 U.S.C.C.A.N. 3182, 3221-22 (noting that disparities in sentencing and grants of parole meant that "prisoners and the public were seldom certain about the real sentence a defendant will serve"). The role of GCT was also of concern because it, together with the parole system, affected the amount of time a prisoner would serve. S. Rep. No. 98-225, at 56; 1984 U.S.C.C.A.N. 3239. A Senate report noted that, even where sentences were similar among similarly situated offenders, "the actual terms to be served are subject continually to the `good time' adjustments by the Bureau of Prisons and to counter-adjustments by the Parole Commission. . . . The result is that the existing federal system lacks the sureness that criminal justice must provide. . . ." S. Rep. No. 98-225, at 49; 1984 U.S.C.C.A.N. 3232.

The Comprehensive Crime Control Act introduced changes intended to reduce uncertainty in sentencing and length of imprisonment. The statute relating to good time credits was rewritten — including the use of the phrase "term of imprisonment" in place of "term of . . . sentence" — but no mention is made in the Senate Report (the only legislative history of the statute cited by the parties) as to whether the credits should be calculated on the basis of time served or the sentence imposed. The main concern reflected in the Senate Report was that only one calculation should be made, as opposed to multiple calculations resulting from separate adjustments made under the parole system.See, e.g., S. Rep. No. 98-225, at 57; 1984 U.S.C.C.A.N. 3240 ("A prisoner will continue to receive credit toward his term, or `good time' for satisfactory institutional behavior, but it will not be subject to constant adjustment by prison officials.").

Nothing in the report provides any insight into whether section 3624 permits calculations to be made on the basis of time actually served as opposed to the sentence received. Either system would fulfill the legislative history's stated interest in minimizing adjustments by prison officials and achieving some relative degree of certainty. As to the particular calculation at issue, the Senate Report — referring to a prior version of the text that allowed accrual of only 36 days — states only that "[Section 3624(b)] provides a uniform maximum rate of 36 days a year for all time in prison beyond the first year. . . . Section 3624(b) provides for automatic vesting of credit toward early release at the end of each year of satisfactory behavior." S. Rep. No. 98-225, at 147; 1984 U.S.C.C.A.N. 3330. While the Government argues that these statements favor their own position, they are not forceful indicators of intent. Nothing in these statements, or in any other legislative history cited by the parties, speaks to the specific issue of the meaning of "term of imprisonment." Certainly, nothing provides "sufficient clarity that the agency construction is contrary to the will of Congress." Japan Whaling Ass'n., 478 U.S. at 233. Accordingly, the legislative history is of no help in the Court's analysis.

Loeffler directs the Court to statements by Senator Biden in the Congressional Record — that long post-dated the enactment of section 3624 — referring to the opportunity for prisoners to serve only 85% of their sentence. See 141 Cong. Rec. S2348-49 (Feb. 9, 1995). Loeffler also refers to cases that assume that federal prisoners serve only 85% of their sentences. See, e.g., United States v. Martin, 100 F.3d 46, 47 (7th Cir. 1996). But such statements are irrelevant inasmuch as none arose in the specific context of an interpretation of section 3624. Moreover, the use of figures such as 85% could logically be viewed as a shorthand reference to the fact that the statute permits a prisoner to receive GCT credit based on 15% of the prisoner's time served (56 days divided by 365 days) rather than as a sub silentio interpretation of the meaning of "term of imprisonment."

B. Deference to Agency Interpretation

Because the meaning of "term of imprisonment" is ambiguous as used in section 3624(b), the Court must move to step two of theChevron analysis. For purposes of determining the level of deference owed to the agency's interpretation, it is important to note that the BOP's interpretation is embodied not only in its internal Program Statement, but also in an agency regulation. 28 C.F.R. § 523.20 explicitly refers to the base period for the GCT calculation as the time "served" by the inmate. This regulation was adopted through the notice and comment procedure. See 62 Fed. Reg. 50,786 (Sept. 26, 1997); see also 5 U.S.C. § 301 (providing for executive agency rulemaking authority). The Program Statement, which more clearly sets forth the BOP's interpretation, was plainly intended to "carry `the force of law'" rather than merely binding private parties to a dispute.See Schneider v. Feinberg, 345 F.3d 135, 142-43 (2d Cir. 2003) (quoting Mead, 533 U.S. at 231-32). Thus, the agency's interpretation is entitled to full Chevron deference. See id.; Mead, 533 U.S. at 226-227 ("administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority"); see also Barnhart v. Walton, 535 U.S. 212, 221-22 (2002) ("the fact that the Agency previously reached its interpretation through means less formal than `notice and comment' rulemaking does not automatically deprive that interpretation of the judicial deference otherwise its due") (citation omitted).

Thus, under step two of Chevron, this Court must determine only whether the interpretation in question is "based on a permissible construction of the statute." Chevron, 467 U.S. at 843. An agency's interpretation of an ambiguous statute may only be rejected if it is "arbitrary, capricious, or manifestly contrary to the statute." Firstland Int'l, Inc. v. United States Immigration. Nat. Serv., 377 F.3d 127, 131 (2d Cir. 2004) (citing Evangelista v. Ashcroft, 359 F.3d 145, 150 (2d Cir. 2004)). The agency's interpretation does not need to be the only possible interpretation to be upheld, nor must it be the best interpretation of the statute, Chevron, 467 U.S. at 843 n. 11. As long as "the agency's reading fills a gap or defines a term in a reasonable way in light of the Legislature's design, we give that reading controlling weight, even if it is not the answer the court would have reached if the question initially had arisen in a judicial proceeding." Regions Hosp. v. Shalala, 522 U.S. 448, 457 (1998) (citation and internal quotation marks omitted);accord Kruse v. Wells Fargo Home Mortg., Inc., 383 F.3d 49, 55 (2d Cir. 2004).

Loeffler aptly characterizes the BOP's method of calculating GCT as involving a "headache-inducing formula." Pet. Mem. at 1. Nonetheless, "headache-inducing" does not equate to "arbitrary, capricious, or manifestly contrary to the statute." Because the BOP's construction of the statute fits into none of these categories, the Court must uphold it. While the BOP might have chosen to interpret the phrase "term of imprisonment" in the way Loeffler proposes, the statute enacted by Congress is simply silent on this point and gives no specific direction as to the GCT calculation. Accordingly, the Court has no choice but to defer to the BOP's interpretation. Notably, this ruling is in accord with the majority of courts that have addressed this issue. See, e.g., Pacheco-Camacho v. Hood, 272 F.3d at 1272; Graves, 2004 WL 1941231 at *2 (citing cases); Pascuiti, 2004 WL 1247813 at *6; Martinez v. Wendt, 2003 WL 22456808, *3 (N.D. Tex. Oct. 24, 2003) (Report and Recommendation) (adopted by 2003 WL 22724755 (N.D. Tex. Nov. 18, 2003)).

CONCLUSION

For the foregoing reasons, Loeffler's petition is denied. The Clerk is requested to enter judgment and to close this case.