Shipp v. Hurwitz

ROBERT SHIPP, Plaintiff, v. HUGH J. HURWITZ, et al., Defendants.

Civil Action No.: 19-1733 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 9, 2019

Re Document No.: 2

MEMORANDUM OPINION

DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

I. INTRODUCTION

Plaintiff Robert Shipp, a convicted felon currently serving a thirty-year sentence for drug-related crimes and scheduled for release in the next few weeks, comes before this Court seeking to compel Defendants the Bureau of Prisons ("BOP") and its acting director, Hugh J. Hurwitz, to comply with the good conduct time credits provision of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. In his complaint, Shipp contends that the BOP is violating the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06, by refusing to comply with the First Step Act, which amends the U.S. Code to extend good conduct time credit available to prisoners. Shipp moves for a temporary restraining order and preliminary injunction ordering Defendants to both 1) immediately recalculate available good time credit for all prisoners in BOP custody, and 2) immediately release from custody those prisoners with release dates that have already passed. Because Congress unambiguously delayed implementation of the relevant subsection of the Act until a new risk and needs assessment system is released by the Attorney General, and that system has not yet been released, the Court concludes that Plaintiff's claim lacks merit and denies the motion.

II. BACKGROUND

A. Incarceration Good Conduct Time Credit and the First Step Act

When serving a sentence of incarceration, federal inmates can be credited time towards the completion of their sentence if they "display[] exemplary compliance with institutional disciplinary regulations." 18 U.S.C. § 3624(b). Prior to the passage of the First Step Act, 18 U.S.C. § 3624(b) provided that prisoners could 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." Id. In interpreting this statute, the BOP "implemented a calculation methodology that granted good time only for a person's time spent in prison, as opposed to the duration of the sentence imposed by the court." Compl. ¶ 13, ECF No. 1 (citing Barber v. Thomas, 560 U.S. 474, 476-77 (2010)). For example, a prisoner sentenced to ten years of imprisonment but set to be released after only nine years due to good behavior could receive good time credit only for the nine years actually served, and not for the tenth year of the sentence imposed by the Court. See Barber, 560 U.S. at 478-79 (illustrating good time credit earned under BOP interpretation in a hypothetical ten-year sentence). Functionally, this resulted in prisoners being eligible for at most 47 days of good time credit per year of their court-ordered sentence. See id.; Compl. ¶ 15.

On December 21, 2018, President Donald J. Trump signed the First Step Act into law. See generally First Step Act, 132 Stat. at 5194. The Act, which introduces a wide range of amendments aimed at criminal justice reform, provides for the creation of a new risk and needs assessment system for prisoners, to be developed and released by the Attorney General "[n]ot later than 210 days after the date of enactment [of the Act]." First Step Act § 101(a). The First Step Act also amends the good time credit provision, with Section 102(b)(1)(A) of the Act amending 18 U.S.C. § 3624(b) to now provide that a prisoner "may receive credit towards the service of the prisoner's sentence of up to 54 days for each year of the prisoner's sentence imposed by the court." First Step Act § 102(b)(1)(A) (emphasis added). However, Section 102(b)(2) of the Act notes that "[t]he amendments made by this subsection shall take effect beginning on the date that the Attorney General completes and releases the risk and needs assessment system . . . added by section 101(a)." Id. § 102(b)(2).

B. Plaintiff's Incarceration and Projected Release

Plaintiff Robert Shipp is an Illinois resident currently in the custody of the Bureau of Prisons. Compl. ¶¶ 1-2, ECF No. 1. In 1993, Shipp was convicted of multiple drug-related crimes and sentenced to life imprisonment. See id. ¶¶ 19-21; see generally Docket, United States v. Shipp, No. 1993-cr-350 (N.D. Ill.). Shipp's sentence was reduced to a thirty-year term of imprisonment on February 26, 2015. Compl. ¶ 22. According to Shipp, on May 7, 2019, the BOP calculated his pre-First Step Act projected release date to be November 26, 2019, based on Shipp's remaining sentence adjusted for his good time credit. Id. ¶ 25. As a result of the First Step Act's extension of good time credit, Shipp alleges that the BOP recalculated his projected release date on June 12, 2019, to now provide for a "'First Step Act Release' date of July 19, 2019." Id. ¶ 27. However, Shipp also alleges that, based on the projected good time credit he will have earned as of July 19, 2019, his release date under the First Step Act would be May 6, 2019. Id. ¶ 28. Shipp thus contends that "the BOP has already recalculated [his] sentence [pursuant to the First Step Act], but refuses to apply that calculation until July 19th, thereby keeping him confined for what will be 74 days beyond what BOP itself has calculated to be his release date." Id. ¶ 29.

C. Procedural History

Shipp filed a complaint against Hurwitz and the BOP pursuant to the APA on June 14, 2019. See Compl. Shipp alleges that 18 U.S.C. § 3624(b), as amended by the First Step Act, requires the BOP to recalculate good time credit for all prisoners by crediting up to 54 days per year of each prisoner's sentence, but that the BOP "continues to calculate good time credit pursuant to [its old regulations] . . . and refuses to apply the statutory change." Compl. ¶ 38. This, he contends, is agency action unlawfully withheld pursuant to 5 U.S.C. § 706(1), and the Court should compel the BOP to comply with the revised statute. See id. ¶¶ 43, 44.

On the same day, Shipp filed a motion for a temporary restraining order and preliminary injunction, asking the Court to compel Defendants to recalculate the good time credit for all prisoners in its custody and to begin releasing those with release dates that have already passed. Pl.'s Emergency Mot. TRO & Prelim. Inj. 1, ECF No. 2. Defendants filed their opposition on June 24, 2019. Defs.' Opp'n, ECF No. 6. Shipp filed his reply on June 27, 2019. Pl.'s Reply, ECF No. 7. Shipp's motion is now ripe for review.

III. LEGAL STANDARD

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008)). To obtain preliminary injunctive relief, a plaintiff "must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public's interest." Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). "[T]he movant has the burden to show that all four factors, taken together, weigh in favor of the injunction." Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). "The likelihood of success requirement is the most important of these factors," Elec. Privacy Info. Ctr. v. FTC, 844 F. Supp. 2d 98, 101 (D.D.C. 2012) (citing Biovail Corp. v. FDA, 448 F. Supp. 2d 154, 159 (D.D.C. 2006)), and a court "need not proceed to review the other three . . . factors" when a plaintiff has failed to show likelihood of success on the merits, id. (quoting Ark. Dairy Coop. Ass'n v. Dep't of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009)). Similarly, "a court may refuse to issue an injunction without considering any other factors when irreparable harm is not demonstrated." GEO Specialty Chems., Inc. v. Husisian, 923 F. Supp. 2d 143, 147 (D.D.C. 2013). And finally, "[t]he standard that applies to preliminary injunctions also applies to temporary restraining orders." Gilliard v. McWilliams, 315 F. Supp. 3d 402, 412 (D.D.C. 2018) (quoting Experience Works, Inc. v. Chao, 267 F. Supp. 2d 93, 96 (D.D.C. 2003)).

IV. ANALYSIS

Shipp moves for a temporary restraining order and preliminary injunction directing Defendants to comply with 18 U.S.C. § 3624(b), as revised by the First Step Act. See Pl.'s Mem. Supp. Emergency Mot. 1, ECF No. 2. Shipp represents that Section 102(b)(2) of the First Step Act, while appearing on its face to delay implementation of Section 102 until after the release of the new risk and needs assessment system, "simply do[es] not apply to Section 102(b)(1)(A)," and instead applies only to the two other amendments contained in Section 102. Pl.'s Mem. Supp. 8. As a result, Shipp argues, the amendment in Section 102(b)(1)(A) is already operative and Defendants are unlawfully failing to revise their good time credit calculations. See id. In opposition, Defendants argue both that Shipp has not shown irreparable harm because his claim is not ripe, and that he has not shown likelihood of success on the merits because this action should have been brought as a habeas corpus case, and, in any event, the Act makes clear that Section 102(b) has been delayed and is not yet operative. See Defs.' Opp'n 4-12. The Court first addresses Defendants' ripeness argument, which touches on its subject matter jurisdiction over this case, before discussing Shipp's likelihood of success on the merits. While it finds that Shipp brings a ripe APA claim and is not required to pursue it through habeas proceedings, the Court agrees with Defendants that Section 102(b)(2) unambiguously delays the applicability of Section 102(b)(1)(A) until after the release of the...