Anthony R. Elwood, Plaintiff - Appellant, v. Cole Jeter, Warden, FCI Forrest City; United States Bureau of Prisons, Defendants - Appellees.

No. 04-2253

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

386 F.3d 842; 2004 U.S. App.

September 13, 2004, Submitted
October 18, 2004, Filed


PRIOR HISTORY: [**1] Appeal from the United States District Court for the Eastern District of Arkansas.

DISPOSITION: Reversed and remanded.


COUNSEL: ANTHONY R. ELWOOD, Plaintiff - Appellant, Pro se, Forrest City, AR.

For ANTHONY R. ELWOOD, Plaintiff - Appellant: Tim Cullen, CULLEN & COMPANY, PLLC, Little Rock, AR.

For COLE JETER, Warden, FCI, Forrest City, UNITED STATES BUREAU OF PRISONS, Defendants - Appellees: E. Fletcher Jackson, U.S. ATTORNEY'S OFFICE, Little Rock, AR.

JUDGES: Before RILEY, LAY, and MELLOY, Circuit Judges. RILEY, Circuit Judge, dissenting.

OPINIONBY: MELLOY

OPINION: [*843] MELLOY, Circuit Judge.
Anthony Elwood ("Elwood") appeals the district court's denial of his Petition for a Writ of Habeas Corpus, alleging that the Bureau of Prisons's ("BOP") policy of limiting prisoner placement in Community Corrections Centers ("CCC") to the lesser of six months or ten percent of the prisoner's sentence is illegal. We reverse.
Procedural Background
On May 28, 2002, Elwood pled guilty to one count of wire fraud in the United States District Court for the Western District of Missouri. On February 20, 2003, the district court sentenced him to forty-eight months in prison, followed by three years of supervised [**2] release. Upon entering prison, Elwood learned that he would not be eligible for transfer to a CCC until November 28, 2005, which would be, with the application of good time credits, four months from the end of his sentence. Elwood filed grievances asserting that he should be transferred to a CCC at an [*844] earlier date. n1 Elwood's grievances were denied. On December 31, 2003, Elwood filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241. The district court denied his petition on May 5, 2004.

n1 The parties agree that Elwood failed to exhaust his administrative remedies, however, the government waived the exhaustion requirement because it concedes Elwood's continued use of the grievance procedure to contest the validity of the BOP's new policy would be futile.

The History of the BOP's Placement Policies
At the time Elwood pled guilty, the BOP had a policy of allowing prisoners to serve their last six months of incarceration in a CCC regardless of what percent of the [**3] sentence this six months comprised. However, on December 13, 2002, in response to an inquiry by the BOP, the Office of Legal Counsel of the U.S. Department of Justice issued a Memorandum (the "Memorandum") that found the BOP's CCC placement policy illegal because it was inconsistent with the BOP's statutory grant of authority.
The BOP is granted authority to designate the place of an inmate's imprisonment in 18 U.S.C. § 3621(b):


(b) Place of imprisonment.--The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau . . . that the Bureau determines to be appropriate and suitable . . . . The Bureau may at any time . . . direct the transfer of a prisoner from one penal or correctional facility to another.


However, this grant of authority must be read in conjunction with 18 U.S.C. § 3624(c):


(c) Pre-release custody.--The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable [**4] part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's reentry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement. The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody.
The Memorandum concluded that the BOP's policy of placing prisoners in CCCs for six months at the end of their terms was inconsistent with § 3621(b) and § 3624(c). The Memorandum acknowledged that § 3621(b) gave the BOP the authority to choose an inmate's place of imprisonment generally. However, the Memorandum found that "community confinement does not constitute imprisonment." Memorandum at 1, available at http://www.usdoj.gov/olc/allopinionstxt.htm. Therefore, § 3621(b), which gives the BOP the power to decide a prisoners "place of imprisonment" in "any available penal or correctional facility" did not apply to placement in CCCs. Id. According to the Memorandum, the authority to transfer a prisoner to a CCC came solely from [**5] § 3624(c). This section limited the stay in "conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community" to "a reasonable part, not to exceed six months, of the last 10 per centum of the term." 18 U.S.C. § 3624(c); see Memorandum at 1, 6. The Memorandum concluded the BOP [*845] had no authority to transfer a prisoner to a CCC, except for the lesser of the last ten percent of the sentence and the last six months of the sentence.
The United States Attorney General's Office Adopted the Office of Legal Counsel's position on December 16, 2002. On December 20, 2002, the BOP adopted the opinions of the Office of Legal Counsel and the Attorney General and instituted a policy that inmates could be released to CCCs only for the last ten percent of their terms, to be capped at six months.
Under the new BOP policy, Elwood is eligible for placement in a CCC beginning November 28, 2005, during only the last four months of his sentence, while under the old BOP policy, he would be eligible for placement in a CCC for a full six months of his sentence. Elwood argues that the new policy is illegal, [**6] and that he is entitled to additional time in a CCC near the conclusion of his confinement.
Discussion

A. Standard of Review
When reviewing an agency's interpretation of a statute, we must first consider "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." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). If "Congress has not directly addressed the precise question at issue . . . the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. We find that, here, Congress addressed the issue, so we need not look to the agency's interpretation of the statute.

B. Analysis
Elwood brings three challenges to the BOP's new placement policy. First, Elwood claims that the policy is based on an erroneous interpretation of two statutory provisions, 18 U.S.C. § § 3621(b) and 3624(c). Second, Elwood [**7] argues that the policy violates the Administrative Procedures Act ("APA"), 5 U.S.C. § 553, because it was not published and made available for public comment. Third, Elwood contends that the policy violates the Ex Post Facto Clause. Because we grant relief on Elwood's statutory argument, we need consider neither his APA nor Ex Post Facto claims.
Elwood argues that, based on 18 U.S.C. § § 3621(b) and 3624(c), the BOP may transfer an inmate to a CCC at any time and must transfer an inmate for a reasonable part of the last ten percent of his or her sentence, though this obligation does not extend beyond six months. His reading of the statutes is based on the following claims. First, § 3621(b) gives the BOP the authority to transfer an inmate to any penal or correctional facility at any time. Second, a CCC is a penal or correctional facility and a place of imprisonment. Third, § 3624(c) reads:


The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that [**8] will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community.


18 U.S.C. § 3624(c) (emphasis added). Elwood contends this "shall" bestows a duty on the BOP to transfer inmates, not merely a power to do so. Therefore, Elwood [*846] argues, the BOP has the discretion to transfer him to a CCC at any time during his sentence, and the BOP must transfer him to a CCC or similar conditions for the last ten percent of his term, unless it is not practicable to do so.
Until recently, no appeals court had spoken on the issue of the legality of the BOP's current placement policy. However, the First Circuit in a recent decision, Goldings v. Winn, 383 F.3d 17, 2004 U.S. App. LEXIS 19012, No. 03-2633, 2004 WL 2005625 (1st Cir. Sept. 9, 2004), agreed with Elwood's interpretation of the statutes and invalidated the policy. In addition, the judgments of several district courts support Elwood's interpretation. See, e.g., Schoenfeld v. Menifee, 2004 U.S. Dist. LEXIS 12499, No. 04Civ.3551NRB, 2004 WL 1516797 (S.D.N.Y. July 7, 2004); Zucker v. Menifee, 2004 U.S. Dist. LEXIS 724, No. 03 Civ. 10077(RJH), 2004 WL 102779 (S.D.N.Y. Jan. 21, 2004); Fagiolo v. Smith, 326 F. Supp. 2d 589 [**9] (M.D. Penn. Mar. 12, 2004); Cato v. Menifee, 2003 U.S. Dist. LEXIS 21289, No. 03 Civ. 5795(DC), 2003 WL 22725524 (S.D.N.Y. Nov. 20, 2003); Grimaldi v. Menifee, 2004 U.S. Dist. LEXIS 7455, No. 04CIV1340DABGWG, 2004 WL 912099 (S.D.N.Y. Apr. 29, 2004).
The government, on the other hand, contends that the current BOP policy reflects the correct interpretation of 18 U.S.C. § § 3621(b) and 3624(c). The government agrees with Elwood that § 3621(b) gives the BOP authority to "at any time . . . direct the transfer of a prisoner from one penal or correctional facility to another." See 18 U.S.C. § 3621(b). It also agrees that a CCC is a penal or correctional facility and a place of imprisonment. n2 However, the government reads § 3624(c) to be a limit on the general authority granted in § 3621(b), and not an affirmative duty to place inmates in CCCs for the conclusion of their time of incarceration. See Varity Corp. v. Howe, 516 U.S. 489, 511, 134 L. Ed. 2d 130, 116 S. Ct. 1065 (1996) (holding that when construing statutes, the "specific governs the general" (internal citations omitted)) . Therefore, the government concludes, the BOP may transfer an inmate to a [**10] CCC only during the last ten percent of the inmate's term, and not to exceed six months.

n2 The government conceded, both in its brief and in oral argument, that a CCC is a place of imprisonment. This approach is a departure from the Office of Legal Counsel's position, as well as the position of many courts that have upheld the policy. See, e.g., Adler v. Menifee, 293 F. Supp. 2d 363 (S.D.N.Y. 2003); Galizia v. The Federal Bureau of Prisons, 2004 U.S. Dist. LEXIS 16885, No. 04 Civ. 5777(RCC), 2004 WL 1900350 (S.D.N.Y. Aug. 25, 2004); Roth v. Menifee, 2004 U.S. Dist. LEXIS 16760, No. 04 Civ. 3552(TPG), 2004 WL 1886010 (S.D.N.Y. Aug. 23, 2004); Skelskey v. Deboo, 332 F. Supp. 2d 485., 2004 WL 1897023 (D. Conn. 2004); Cohn v. The Federal Bureau of Prisons, 302 F. Supp. 2d 267 (S.D.N.Y. 2004); Loeffler v. Menifee, 326 F. Supp. 2d 454 (S.D.N.Y. 2004)

We agree with the interpretation of the statutes put forward by Elwood and the First Circuit. Section 3624(c) [**11] clearly states that the BOP "shall" "assure" that each prisoner spends a reasonable part of the last ten percent of his or her term "under conditions that afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community" to the extent that this is practicable. As the First Circuit stated:


This language imposes an affirmative obligation on the BOP to take steps to facilitate a smooth re-entry for prisoners into the outside world. It is true that this obligation is qualified. Section 3624(c) does not mandate placement in a CCC prior to release, and it requires the BOP to assure that a prisoner spends the last part of his sentence under pre-release conditions only if practicable. However, a qualified obligation differs from a grant of discretion. Under § 3624(c), the BOP must ensure placement under pre-release conditions except [*847] where no such placement is practicable.


Goldings, 2004 U.S. App. LEXIS 19012, 2004 WL 2005625 at *5. We agree with the First Circuit that the word "shall" bestows a duty on the BOP. To adopt the government's view that the section merely limits the more general grant of authority in 18 U.S.C. § 3621(b) [**12] would be to ignore the obligatory nature of the word "shall."
We emphasize, like the First Circuit, that 18 U.S.C. § 3624(c) does not require placement in a CCC. It only obligates the BOP to facilitate the prisoner's transition from the prison system. Under § 3621(b), the BOP may place a prisoner in a CCC for six months, or more. Under § 3624(c) the BOP must formulate a plan of pre-release conditions. This plan may include CCC placement, home confinement, drug or alcohol treatment, or any other plan that meets the obligation of a plan that addresses the prisoner's re-entry into the community. Likewise, the obligation is qualified by the phrase "to the extent practicable." Security concerns or space limitations in a CCC near the prisoner's home are among the factors that may make it impractical to transfer a prisoner to a CCC for all or even part of the transition period.
Conclusion
We hold, on the facts of this case, in which both parties agree that CCCs are places of imprisonment for the purposes of 18 U.S.C. § 3621(b), that § 3621(b) gives the BOP the discretion to transfer prisoners to CCCs at any time during their incarceration. [**13] Further, the BOP is required to place prisoners in "conditions that will afford [them] a reasonable opportunity to adjust to and prepare for the prisoner's reentry into the community" during a reasonable part of the last ten percent of the prisoner's term, to the extent practicable. This duty shall not extend beyond the last six months of the prisoner's sentence.
We reverse the judgment of the district court and remand for proceedings consistent with this opinion.

DISSENTBY: RILEY

DISSENT: RILEY, Circuit Judge, dissenting.
I respectfully dissent. According to section 3621(b), the Bureau of Prisons (BOP) is required to "designate the place of the prisoner's imprisonment. The [BOP] may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the [BOP]," and may transfer an inmate "at any time." 18 U.S.C. § 3621(b). Under section 3624(c), the BOP's placement of an inmate in a Community Corrections Center (CCC) (or other establishment meant to facilitate the inmate's reentry into society) before the completion of the inmate's term of imprisonment is limited to "a reasonable part, not to exceed [**14] six months, of the last 10 per centum of the term to be served." 18 U.S.C. § 3624(c).
Any inconsistency between sections 3621(b) and 3624(c) can be reconciled by applying two canons of statutory construction. The first canon mandates specific statutory provisions govern over more general provisions. Varity Corp. v. Howe, 516 U.S. 489, 511, 134 L. Ed. 2d 130, 116 S. Ct. 1065 (1996). The Supreme Court interprets the canon, "the specific governs the general," as providing "a warning against applying a general provision when doing so would undermine limitations created by a more specific provision." Id. Section 3621(b) delegates broad authority to the BOP to "designate the place of the prisoner's imprisonment." 18 U.S.C. § 3621(b). Section 3624(c), on the other hand, is narrower, specifically capping at six months the amount of time an inmate may be placed in a CCC (or other transitional [*848] facility) at the end of his term of imprisonment. 18 U.S.C. § 3624(c).
The second canon applicable here is courts must be "reluctant to treat statutory terms as surplusage." Babbitt v. Sweet Home Chapter, Cmtys. for Great Ore., 515 U.S. 687, 698, 132 L. Ed. 2d 597, 115 S. Ct. 2407 (1995). [**15] "It is our duty 'to give effect, if possible, to every clause and word of a statute,' rather than to emasculate an entire section." United States v. Menasche, 348 U.S. 528, 538-539, 99 L. Ed. 615, 75 S. Ct. 513 (1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152, 27 L. Ed. 431, 2 S. Ct. 391 (1883)). By reading the two sections together to permit the BOP to begin to transition inmates at any time during their imprisonment, the majority eviscerates both the specific limitations set forth in section 3624(c) and Congress's express intention to limit the amount of time permitted for CCC placement at the conclusion of an inmate's term.
A plain reading of the two statutes in conjunction with each other permits compliance with the two cited canons. The specific ten percent/six-month limitations contained in section 3624(c) expressly restrict the BOP's broad grant of general authority and discretion conferred under section 3621(b). See, e.g., Galizia v. Fed. Bureau of Prisons, 2004 U.S. Dist. LEXIS 16885, No. 04 Civ. 5777(RCC), 2004 WL 1900350, at *3 (S.D.N.Y. Aug. 25, 2004); Skelsky v. Deboo, 332 F. Supp. 2d 485, 2004 WL 1897023, at *3 (D. Conn. 2004); [**16] Loeffler v. Menifee, 326 F. Supp. 2d 454, 461-62 (S.D.N.Y. 2004); Cohn v. Fed. Bureau of Prisons, 302 F. Supp. 2d 267, 273 (S.D.N.Y. 2004); Adler v. Menifee, 293 F. Supp. 2d 363, 368-69 (S.D.N.Y. 2003); accord Crapanzano v. Menifee, 2004 U.S. Dist. LEXIS 5738, No. 04 Civ. 1052 (SAS), 2004 WL 736860, at *2 n.5 (S.D.N.Y. Apr. 5, 2004) (agreeing section 3624(c) expressly restricts broad grant of authority in section 3621(b), but concluding change in BOP policy violates the Administrative Procedures Act and Ex Post Facto Clause).
Under section 3621(b), therefore, the BOP generally may place an inmate in any penal or correctional facility at any time, subject, however, to the specific time limitations set forth in section 3624(c). Without rendering meaningless any terms in either statute, this interpretation utilizes the language contained in both statutes, and specifically gives life to section 3624(c)'s limitations on placements in transitional facilities at the end of an inmate's term. Such an interpretation further complies with the canon, "the specific governs the general." Conversely, the majority opinion's interpretation ignores the limitations [**17] "not to exceed six months" and "of the last 10 per centum," rendering the terms mere "surplusage" in violation of both canons of statutory construction.
I agree with the majority's conclusion that section 3624(c) places an affirmative duty on the BOP to facilitate the transition of inmates out of the prison system at the conclusion of their sentence. Section 3624(c), the more specific statute, evinces a dual Congressional intent-an intent to place a limit on section 3621(b)'s broad grant of authority, and an intent to mandate efforts are made to ease an inmate's transition back into society, which transition is "not to exceed six months." My disagreement is with the majority's decision to disregard the specific limitations set forth in section 3624(c), notwithstanding Congress's use of the phrase "a reasonable part" in modifying the limitations. The majority concludes section 3621(b) permits the BOP to transfer an inmate to a CCC for more than six months. Section 3624(c), while mandating the BOP allow an inmate the opportunity to transition into the community at the conclusion of his imprisonment, also states such placement must be for "a reasonable part" of the last [*849] ten percent of [**18] the term of imprisonment, but such placement is "not to exceed six months." Congress gave the BOP some discretion in interpreting what "a reasonable part" of that time will be. However, as made clear in section 3624(c), that discretion ends at a maximum of six months.
Practical application of the majority's decision would permit inmates being assigned to CCCs for years or for the entire term of imprisonment. May the BOP decide a federal inmate serving a twenty-year or even fifty-year sentence will be placed in a CCC for ten years or for the entire imprisonment term? According to the majority, such a decision would rationally implement sections 3621(b) and 3624(c), notwithstanding section 3624(c)'s express six-month limitation.
The majority's interpretation eviscerates section 3624(c) in a judicial effort to expand the possible CCC time. I prefer to follow the language of Congress in its entirety. Therefore, I dissent.

MICHAEL RICHMOND, Petitioner-Appellant, v. JOSEPH SCIBANA, Warden, Federal Correctional Institution at Oxford, Wisconsin, Respondent-Appellee.

No. 04-2264

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

387 F.3d 602; 2004 U.S. App.

September 28, 2004, Argued
October 19, 2004, Decided


PRIOR HISTORY: [**1] Appeal from the United States District Court for the Western District of Wisconsin. No. 04-C-131-S. John C. Shabaz, Judge.

DISPOSITION: Affirmed.


COUNSEL: For MICHAEL RICHMOND, Petitioner - Appellant: Mitchell S. Moser, QUARLES & BRADY, Milwaukee, WI, USA.

For JOSEPH SCIBANA, Respondent - Appellee: Mullen J. Dowdal, OFFICE OF THE UNITED STATE ATTORNEY, Madison WI, USA.

JUDGES: Before BAUER, EASTERBROOK, and MANION, Circuit Judges.

OPINIONBY: EASTERBROOK

OPINION:
[*603] EASTERBROOK, Circuit Judge. "The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement." 18 U.S.C. § 3624(c). In December 2002 the Department of Justice concluded (relying on an opinion issued by the Office of Legal Counsel) that the "not to exceed" proviso in § 3624(c) limits the Bureau's discretion under [**2] 18 U.S.C. § 3621(b) to designate an inmate's place of confinement, and that as a result prisoners are ineligible for community or home confinement before the last six months or 10% of their sentences, whichever is shorter. Because the Bureau is a unit within the Department of Justice, the OLC's opinion governs the Bureau's conduct.
Inmates throughout the nation have challenged the new interpretation, which one circuit recently found to be erroneous. See Goldings v. Winn, 383 F.3d 17, 2004 U.S. App. LEXIS 19012 (1st Cir. Sept. 9, 2004) (holding that § 3621(b) entitles the Bureau of Prisons to place inmates in community confinement for any or all of their sentences, § 3624(c) notwithstanding). Michael Richmond filed a petition for habeas corpus, see 28 U.S.C. § 2241, claiming entitlement to consideration for less-restrictive confinement. The district court dismissed his petition because Richmond had never asked the Warden or anyone else at the Bureau of Prisons to place him in community confinement before the last 10% of his sentence and thus had not exhausted the administrative remedies [*604] available under 28 C.F.R. § § 542.13 to 542.15 [**3] .
Richmond is approaching the statutory milestones -- he enters the final six months of his sentence on December 14, 2004, and the last 10% on February 3, 2005 -- so judicial relief must come quickly if he is to enjoy an opportunity for earlier consideration. Looming dates excuse exhaustion, Richmond says; anyway, he asks, what good would a post-2002 request have done given the OLC's legal opinion? As the Bureau sees matters, however, this is a challenge to prison conditions covered by the exhaustion requirement in the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Perez v. Wisconsin Department of Corrections, 182 F.3d 532, 536-37 (7th Cir. 1999), holds that courts will not try to sift futile from effective remedies for this purpose; instead of asking judges to guess, prisoners must give it a go. Booth v. Churner, 532 U.S. 731, 149 L. Ed. 2d 958, 121 S. Ct. 1819 (2001), adds that exhaustion is required even if the administrative process cannot supply the relief the prisoner seeks. To get anywhere, Richmond must persuade us that § 1997e(a) does not apply. His theme on appeal is that this is a genuine § 2241 proceeding unaffected by the [**4] PLRA. See Walker v. O'Brien, 216 F.3d 626, 633-37 (7th Cir. 2000).
Now it is doubtful that the choice between "challenge toprison conditions" and " § 2241 proceeding" makes much difference to Richmond. A common-law exhaustion rule applies to § 2241 actions even though § 1997e(a) does not, and although the common law allows of exceptions the hurdle is high. Compare Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004), with United States v. Roque-Espinoza, 338 F.3d 724, 729 (7th Cir. 2003) ("futility excuses will not go far"). The press of time is Richmond's fault. Although the Bureau of Prisons notified inmates promptly of the OLC's decision, Richmond did nothing for the next 16 months until March 5, 2004, when he filed suit. A prisoner cannot manufacture exigency by tarrying.
Application to the Bureau need not have been a pointless exercise. Richmond might have asked it to exempt current inmates, a possibility that the OLC did not consider. (In this litigation Richmond contends that the Ex Post Facto Clause precludes application of the OLC's opinion to persons whose crimes occurred before December 2002. As a constitutional [**5] argument this is not promising; the statutes predate his offense. But as a request for a grandfather clause in the new approach, Richmond's position may fare better and should have been presented to the Bureau.) Another outcome could have been a decision that Richmond is unsuitable for that placement independent of the OLC's statutory interpretation. Such a decision would have avoided any need for this litigation. By withholding a request for administrative action, Richmond may well have trumped up a legal issue. We cannot be sure, so it is not possible to declare that he seeks an advisory opinion; still, reducing uncertainty is an important benefit of an administrative request.
What is more, it is hard to see why we should strain to find an opportunity to address the correctness of the OLC's opinion, when Richmond probably has nothing to gain by a conclusion that § 3621(b) grants the Bureau of Prisons more discretion than the Office of Legal Counsel believed. To say that the Bureau has discretion is not to say that it must act favorably on any inmate's request.
Consider 18 U.S.C. § 3621(e)(2)(B), which permits the Bureau of Prisons to reduce the [**6] time served by a prisoner who completes a substance-abuse program. Persons convicted of "crimes of violence" [*605] are ineligible, and the Bureau concluded that anyone who possessed a weapon in connection with a crime was covered by that exception. After several appellate courts held that this was a legal blunder -- that there is a difference between the inmate's real offense behavior and the crime of conviction, and that only the latter matters to eligibility -- the Bureau revised its policies to exclude all gun-toting felons as a matter of discretion. The Supreme Court held that the new policy is lawful, because a power to deny participation case-by-case implies a power to exercise discretion categorically and establish a rule that affects all situations. See Lopez v. Davis, 531 U.S. 230, 148 L. Ed. 2d 635, 121 S. Ct. 714 (2001). See also Bush v. Pitzer, 133 F.3d 455 (7th Cir. 1997).
That pattern is being repeated for § 3621(a) and § 3624(c). Although several courts have held that the Bureau has more discretion than the OLC thought, the Department of Justice has decided not to exercise in prisoners' favor whatever dispensing power it possesses. It has proposed a rule [**7] that inmates will be placed in community or home confinement only during the last 10% of their sentences. See 69 Fed. Reg. 51213 (Aug. 18, 2004) (adding a new 28 C.F.R. § 570.21). The rule has not yet been promulgated; the comment period lasts until October 18, 2004. Unless comments lead to a change, however, the Bureau will defer Richmond's transfer until February 3, 2005, or later, no matter how § 3621(b) is understood. Given the holding of Lopez that discretion maybe exercised by rule as well as by person-specific decision, see also American Hospital Ass'n v. NLRB, 499 U.S. 606, 113 L. Ed. 2d 675, 111 S. Ct. 1539 (1991), Richmond is unlikely to obtain a judicial order directing the Bureau to place him in community confinement any time before February 3, 2005. Cf. Reno v. Koray, 515 U.S. 50, 61, 132 L. Ed. 2d 46, 115 S. Ct. 2021 (1995).
The difference between a claim of entitlement to be released, and an opportunity to be considered for release, also affects the choice between § 2241 and a mundane civil action -- here, under the Administrative Procedure Act for review of the policy that rests on the OLC's opinion. A placement decision [**8] itself is not open to challenge under the APA, see 18 U.S.C. § 3625, but Richmond does not contest his current placement; he contests only the rules that will be used to decide where he should serve the last few months of his time.
The parties' briefs devote considerable energy to the question whether differences between a minimum-security prison camp (where Richmond now is being held) and community confinement are sufficiently great that Richmond can be deemed to challenge the fact of custody, rather than simply the conditions of confinement acknowledged to be lawful. See, e.g., Moran v. Sondalle, 218 F.3d 647 (7th Cir. 2000); Graham v. Broglin, 922 F.2d 379 (7th Cir. 1991). As should be clear by now, that's the wrong perspective, for victory in this litigation would not entitle Richmond to any change in the duration or even the location of his confinement.
A judge could do no more than determine the extent of the Bureau's discretion to make placement decisions; the substance of any eventual decision is not at issue. Parole litigation supplies a helpful analogy: a prisoner claiming a right to release on parole must use [**9] § 2241 (or § 2254 for a state prisoner); but a prisoner claiming that parole officials are apt to use incorrect rules when resolving a future application must use the APA (or 42 U.S.C. § 1983 for a state prisoner). See, e.g., White v. Henman, 977 F.2d 292 (7th Cir. 1992); Clark v. Thompson, 960 F.2d 663 [*606] (7th Cir. 1992); Walker v. Prisoner Review Board, 694 F.2d 499 (7th Cir. 1982).
Richmond's suit therefore seems to us on the APA side of a line that, as Clark and Graham discuss, has been hazy ever since Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973), and Wolff v. McDonnell, 418 U.S. 539, 554-55, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). A brighter line, under which all challenges to the validity of criminal convictions and the length of confinement fall under § 2241, § 2254, and § 2255, while challenges dealing with the conditions of confinement (maximum vs. minimum custody, solitary vs. general population, prison versus parole and other conditional release) fall under other heads of civil litigation, would have much to commend it. But we cannot adopt a bright line [**10] while the Supreme Court adheres to the subtle distinction between Preiser (challenge to fact or duration of custody must proceed in habeas corpus) and Wolff (challenge to rules affecting conditions of custody, and potentially affecting duration of a particular kind of custody, proceeds as ordinary civil suit unless conditions of custody change so substantially that challenge really is to "fact" of custody). All we can do is apply the standard sensibly and consistently.
Consistency implies treating a challenge to rules that affect placement in community confinement the same way as rules that affect placement in parole systems. The upshot is that § 2241 does not furnish the appropriate means to contest the Bureau's understanding of § 3624(c). We recognize that Goldings proceeded under § 2241, as did Lopez, but the choice between § 2241 and the APA was not brought to either court's attention by the litigants or discussed in either opinion, so neither decision contains a holding on the subject. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 119, 79 L. Ed. 2d 67, 104 S. Ct. 900 & n.29, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37-38, 97 L. Ed. 54, 73 S. Ct. 67 (1952); [**11] Webster v. Fall, 266 U.S. 507, 511, 69 L. Ed. 411, 45 S. Ct. 148 (1925).
Richmond has not followed any of the rules applicable to prisoners' general civil litigation -- not only exhaustion under § 1997e(a) but also payment of the full docket fee, screening through of the three-strikes rule, and the other differences between requests for habeas corpus and general civil litigation. These many differences have led us to say that a petition for habeas corpus may not be "converted" to a civil suit, nor may district judges convert suits in the other direction. See Copus v. Edgerton, 96 F.3d 1038 (7th Cir. 1996); Moore v. Pemberton, 110 F.3d 22 (7th Cir. 1997). Instead the judge should leave that option to the litigants, after they know what is at stake. Cf. Castro v. United States, 540 U.S. 375, 157 L. Ed. 2d 778, 124 S. Ct. 786 (2003). In this situation, however, there is no need for a remand so that Richmond may choose. If he were to stick with § 2241, the petition would have to be dismissed because § 2241 is the wrong section; if he were to elect the APA, the petition would have to be dismissed under § 1997e(a) for failure to exhaust administrative [**12] remedies. As the two come to the same thing, the district court's judgment must be
AFFIRMED.