UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROBERT SHIPP, : : Plaintiff, : Civil Action No.: 19-1733 (RC) : v. : Re Document No.: 2 : HUGH J. HURWITZ, et al., : : Defendants. : 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,

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.”

(b). Prior to the passage of the First Step Act,

(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.”

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,

, 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

2 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

(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

3 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

(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

(1), and the

Court should compel the BOP to comply with the revised statute. See

.

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,

(2008) (citing Munaf v. Geren,

, 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,

(D.C. Cir. 2014) (quoting Sherley

4 v. Sebelius,

(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,

(D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp.,

(D.C. Cir. 2009)). “The likelihood of success requirement is the most important of these

factors,” Elec. Privacy Info. Ctr. v. FTC,

(D.D.C. 2012) (citing Biovail

Corp. v. FDA,

(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,

(quoting Ark. Dairy Coop. Ass’n v. Dep’t of Agric.,

(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,

(D.D.C. 2013). And finally, “[t]he standard that applies to preliminary

injunctions also applies to temporary restraining orders.” Gilliard v. McWilliams,

(D.D.C. 2018) (quoting Experience Works, Inc. v. Chao,

(D.D.C. 2003)).

IV. ANALYSIS

Shipp moves for a temporary restraining order and preliminary injunction directing

Defendants to comply with

(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

5

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 risk and needs assessment

system. The Court accordingly denies Shipp’s motion for injunctive relief.

A. Shipp Brings a Ripe APA Claim

First, the Court briefly addresses Defendants’ argument that Shipp’s motion should be

denied on ripeness grounds. Because Section 102(b)(2) delayed its effective date, Defendants

contend, Section 102(b)(1)(A) of the First Step Act has not yet taken effect and Shipp’s claim

premised on that section of the Act is premature. See Defs.’ Opp’n 4–5. The Court disagrees.

Under the constitution, federal courts are restricted to deciding cases and controversies.

U.S. Const. art. III, § 2. As a result, courts lack subject matter jurisdiction to consider claims

that are not ripe for review. “Part of the doctrine is subsumed into the Article III requirement of

standing, which requires a petitioner to allege . . . an injury-in-fact that is ‘imminent’ or

‘certainly impending.’” Am. Petroleum Inst. v. EPA,

(D.C. Cir. 2012)

(quoting Nat’l Treasury Emps. Union v. United States,

, 1427–28 (D.C. Cir.

1996)). But “even if a case is ‘constitutionally ripe,’ though, there may also be ‘prudential

reasons for refusing to exercise jurisdiction.’”

(quoting Nat’ Park Hospitality Ass’n v. Dep’t

6 of Interior,

(2003)). The Supreme Court has explained that the ripeness

doctrine is intended “to prevent the courts, through avoidance of premature adjudication, from

entangling themselves in abstract disagreements over administrative policies, and also to protect

the agencies from judicial interference until an administrative decision has been formalized and

its effects felt in a concrete way.” CTIA-The Wireless Ass’n v. F.C.C.,

(D.C.

Cir. 2008) (quoting Abbott Labs. v. Gardner,

, 148–49 (1967)). Under prudential

ripeness, courts must therefore “apply a familiar two-pronged balancing test: first, a court must

evaluate the ‘fitness of the issue for judicial decision[,]’ and second, a court must consider ‘the

hardship to the parties of withholding [its] consideration.’” Delta Air Lines, Inc. v. Export-

Import Bank of U.S.,

(D.D.C. 2015) (quoting Abbott Labs.,

).

Here, Defendants contend that Shipp “cannot demonstrate any harm . . . because the

provision of the First Step Act under which he seeks relief does not take effect until July 19,

2019.” Defs.’ Opp’n 4. Defendants represent that “[o]n its face, the section of the First Step Act

relied upon is not yet effective,” and therefore that Shipp “has not been denied any benefit

thereof” and cannot have suffered any injury. Id. at 5. But the date of effectiveness of Section

102(b)(1)(A) of the First Step Act, and Defendants’ obligations pursuant to it, is precisely what

Shipp is challenging through this lawsuit. Just because Defendants believe that, “on its face,”

Section 102(b)(1)(A) is not yet effective, does not prevent Shipp from challenging that

interpretation of the Act. Shipp is presenting the Court with a clearly delineated, present

controversy: he alleges that the section is already operative and that Defendants are failing to

comply with it, thereby creating a very real injury to him and all other prisoners for whom

Defendants are allegedly incorrectly making good time credit calculations. That claim does not

7 “rest[] upon contingent future events,” Defs.’ Mem. Supp. 5 (quoting Atl. States Legal Found. v.

EPA,

(D.C. Cir. 2003)), and the Court therefore finds that Shipp has alleged

the required injury in fact. Neither is prudential ripeness a bar to the Shipp’s claim, when the

claim involves a purely legal issue for which no further factual development is needed, and

Shipp and other inmates allegedly suffer hardship for every day the issue is not resolved.

Because it finds that Shipp’s claim is ripe, the Court will not deny his motion for emergency

injunctive relief on that ground.

B. Shipp Is Not Required to Bring His APA Challenge as a Habeas Petition

Next, Defendants appear to argue that Shipp’s claim fails because he did not bring it as

part of a habeas corpus petition, which would have to be brought in a different district and

against a different defendant. See Defs.’ Mem. Supp. 12. Defendants do not explicitly connect

this argument to the preliminary injunction standard, but because it touches on Shipp’s likelihood

of success on the merits, the Court considers it here. Although this is a close issue, the Court

again disagrees with Defendants.

In a line of cases dating back almost fifty years, the Supreme Court has held that

“Congress has channeled state prisoners’ claims for relief—however styled—into habeas alone if

the prisoners seek a remedy that is at the ‘core of habeas.’” Davis v. U.S. Sentencing Comm’n,

(D.C. Cir. 2013) (quoting Wilkinson v. Dotson,

(2005)). This

means that state prisoners cannot “challenge ‘the fact or duration of [their] confinement’” outside

of a habeas proceeding.

at 663 (quoting Preiser v. Rodriguez,

(1973)).

The D.C. Circuit has extended that rule to claims brought by federal prisoners as well. See

Chatman-Bey v. Thornburgh,

, 808–10 (D.C. Cir. 1988); Davis,

.

The Circuit originally construed the habeas channeling rule for federal prisoners as requiring all

8 claims for which success on the merits “would have a merely probabilistic impact on the

duration of custody” to proceed in habeas. Razzoli v. Fed. Bureau of Prisons,

(D.C. Cir. 2000); see Chatman-Bey, 864 F.2d at 809–10. But in light of more recent Supreme

Court decisions, the Circuit has now adopted the much narrower rule that “a federal prisoner

need bring his claim in habeas only if success on the merits will ‘necessarily imply the invalidity

of confinement or shorten its duration.’” Davis,

(quoting Wilkinson,

) (overruling Razzoli and mirroring the habeas channeling rule for federal prisoners on the rule

applicable to state prisoners); see also id. at 665 (noting that the narrower rule “channel[s] into

habeas only claims that would guarantee a speedier release from prison”).

Here, Defendants contend that because Shipp “believes he is ‘entitled to immediate

release from custody,’” he challenges the duration of his confinement and his claim must be

brought in a habeas proceeding. Defs.’ Opp’n 12 (quoting Compl. ¶ 40). This is a close call.

But because Shipp brings an action challenging the agency-wide interpretation of a statute, rather

than an agency determination relating to his particular sentence, the Court is unconvinced. In

applying the habeas channeling rule, courts in this circuit and elsewhere have recognized in the

parole context that while “any APA action to overturn a particular parole decision on essentially

‘abuse of discretion’ grounds must be brought under habeas,” Hill v. U.S. Parole Comm’n, No.

16-cv-1476 (JEB),

, at *13 (D.D.C. June 2, 2017) (quoting Wallace v.

Christensen,

(9th Cir. 1986), a prisoner can bring an APA challenge

claiming “that parole officials are apt to use incorrect rules when resolving a future application,”

(emphasis omitted) (quoting Richmond v. Scibana,

(7th Cir. 2004). The

latter is essentially what Shipp is attempting here in the context of the good time credit

calculation. Defendants selectively cite from the complaint, where Shipp indicates that “[i]f the

9 BOP applied

(b) to [him] he would be entitled to immediate release from

custody.” Compl. ¶ 40. But release or a reduction in his sentence is not the remedy Shipp asks

for. Shipp is not asking for a recalculation of his own good time credit, or of his projected

release date. Instead, Shipp asks for the Court to “compel the BOP to comply with

(b)” pursuant to the APA. Compl. ¶ 44 (internal quotation marks omitted). As Shipp

points out in his reply, success on the merits of this APA claim “does not guarantee that anyone

will be released from prison, including Mr. Shipp himself.” Pl.’s Reply 5. All Shipp will obtain

if he prevails on the claim is an order from this Court compelling Defendants to calculate his,

and other prisoners’, good time credit according to

(b) as revised by the First

Step Act.

To be sure, everyone expects that this recalculation would most likely result in an earlier

release date. And the complaint makes clear Shipp’s underlying motivation for this APA

challenge—if the BOP applied the statute correctly, he believes that “he would be entitled to

immediate release.” Compl. ¶ 40. But even if Shipp prevailed, Defendants would retain their

discretion in applying the statute, and could recalculate a projected release date based on the

amended § 3624(b) that could be earlier, or later, than his pre-First Step Act projected release

date. Again, similar suits brought in the parole context are instructive. See, e.g., Wilson v.

Fullwood,

, 259 – 60 (D.D.C. 2011); Sellmon v. Reilly,

,

83–84 (D.D.C. 2008). Challenges to prior parole proceeding that “seek relief that will render

invalid the state procedures used to deny parole eligibility . . . and parole suitability” need not be

brought as habeas petitions, courts have explained, because success on such claims would “[not]

necessarily spell speedier release.” Sellmon,

(quoting Wilkinson,

). Instead, prevailing on their claims would allow prisoners to “gain ‘at most a new parole

10 hearing at which . . . . [the USPC] may, in [its] discretion, decline to shorten [their] prison

term[s].”

(quoting Wilkinson,

). The Supreme Court explained in Wilkinson

that it did not matter whether such prisoners “attack their parole-eligibility proceedings . . . only

because they believe that victory on their claims will lead to speedier release.” Wilkinson,

. Such an argument is a “jump from a true premise (that in all likelihood the prisoners

hope these actions will help bring about earlier release) to a faulty conclusion (that habeas is

their sole avenue for relief).”

Here, as in the parole eligibility context, it is clear that Shipp believes recalculation of

his good time credit will result in earlier release—and such belief might well be warranted when

the BOP appears to have already prepared a recalculation of his good time credit pursuant to the

First Step Act that provides for an earlier release. But while there may be an extremely high

probability that Shipp’s sentence would be reduced if he prevails, success on the merits would

still only entitle Shipp to have the BOP recalculate his good time credits in compliance with the

statute, and in its own discretion. Because success on the merits would not “guarantee a speedier

release from prison,” Davis,

, the Court finds that Shipp’s claim does not sound

in habeas and that he was not required to bring it through a habeas proceeding.

C. Section 102(b)(1)(A) of the First Step Act Has Not Yet Taken Effect

Finally, the Court considers the central argument of Defendants’ opposition, that Shipp’s

claim fails because Congress has explicitly delayed the effective date of the relevant section of

the First Step Act. See Defs.’ Opp’n 6. According to Defendants, Shipp “asks the Court to adopt

a disingenuous interpretation of the Act’s plain text,” when the text “most naturally” points to the

effective date for the amendment to § 3624(b) being delayed. Id. at 8. Shipp retorts that it is

Defendants who misconstrue the First Step Act and provide an “absurd” interpretation, Pl.’s

11 Reply 10, an interpretation that he argues is further contradicted by both canons of statutory

construction and the Act’s legislative history, id. at 10–12. Here, the Court must agree with

Defendants. Shipp’s arguments to the contrary notwithstanding, the statute unambiguously

delays implementation of Section 102(b)(1)(A) of the First Step Act until after the development

and release of the risk and needs assessment system. The Court accordingly finds that Shipp is

not likely to succeed on the merits of his APA claim, and it denies Shipp’s motion for

preliminary injunctive relief. 1

A cursory examination of the text of the First Step Act unequivocally indicates that the

relevant section of the Act is not yet in effect. As discussed above in part II.A., Section

102(b)(1)(A) of the First Step Act amends

(b) to 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). However, Section

102(b)(2) of the Act provides 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). By the plain meaning of its

text, there is no other way to read Section 102(b)(2) than as delaying the effectiveness of Section

102(b) altogether until the release of the risk and needs assessment system. For that reason, the

argument advanced by Shipp has already been rejected by a multitude of courts since the passage

of the Act. See, e.g., United States v. Murgia, No. 3:10-cr-0076-01-HRH,

, at

*2 (D. Ala. May 22, 2019) (rejecting argument, noting that “[o]ther district courts around the

1 Somewhat perplexingly, Defendants have opposed Shipp’s motion on the ground that his claim is meritless but have not moved to dismiss. Although it finds that Shipp cannot prevail on his claim, the Court will therefore not dismiss this case. As this case appears to be poised to become moot shortly, the Court does not expect the parties to expend time and energy briefing a motion to dismiss that covers the same ground.

12 country have reached the same conclusion,” and listing cases); Roy v. U.S. Bureau of Prisons,

No. 2:19-cv-59-RMP,

, at *1 (E.D. Wash. Apr. 1, 2019) (noting that “the First

Step Act does not yet authorize the relief that [Plaintiff] seeks”); Rizzolo v. Puentes, No. 1:19-cv-

00290-SKO (HC),

, at *3 (E.D. Cal. Mar. 15, 2019) (“Petitioner is correct that

Section 102(b)(1) . . . amended

(b) to permit federal inmates to earn 54 days of

good time conduct for each year of the sentence imposed. However, this provision has not yet

taken effect.”).

Shipp does not address these cases, nor does he provide a convincing argument for

rejecting the clear command of the Act’s plain text. Shipp asserts that delaying the effectiveness

of the amendment “makes no sense . . . in light of the clearly stated Congressional intent to

rectify the BOP’s previous actions in calculating good time credit.” Pl.’s Reply 10. He urges the

application of the rule of lenity in his favor because “[a]t worst, the statute is silent as to the

effective date for t[he] . . . . good-time fix provision.”

. And he points to the legislative

history of the act, which he contends shows that the good time credit amendment was intended to

be effective immediately.

. But while it is sympathetic to Shipp’s position, the Court

cannot agree with his interpretation of the Act. The statutory text clearly points to a single

possible interpretation, which trumps any contrary indication of Congressional intent or in the

Act’s legislative history. It may be that Section 102(b)(2) was inartfully drafted, and does not

reflect what Congress intended in amending

(b). But even if that were the case,

“[i]t is beyond [the Court’s] province to rescue Congress from its drafting errors, and to provide

for what [the Court] might think . . . is the preferred result.” Lamie v. U.S. Tr.,

(2004) (quoting United States v. Granderson,

(1994)). Having determined

that Section 102(b)(1)(A) is not yet effective, and thus that Defendants are not unlawfully failing

13 to comply with their obligations under

(b), the Court finds that Shipp’s claim is

unlikely to succeed on the merits and it denies his emergency motion for injunctive relief.

V. CONCLUSION

For the foregoing reasons, Plaintiff’s emergency motion for a temporary restraining order

and preliminary injunction (ECF No. 2) is DENIED. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.

Dated: July 9, 2019 RUDOLPH CONTRERAS United States District Judge

14