b'Office of Personnel Management Petitions for Reconsideration\nof Non-Precedentiai Merit Systems Protection Board Decisions\nThe Director o f the Office o f Personnel Management is authorized to petition the M erit Systems Protec\xc2\xad\ntion Board to reconsider a non-precedential decision o f the Board only if the Director concludes\nthat such decision has a substantial im pact on a civil service law, rule, regulation, or policy\ndirective.\n\nSeptember 13, 1999\nM e m o r a n d u m O p in io n fo r t h e G e n e r a l C o u n s e l\nF e d e r a l R e t ir e m e n t T h r if t In v e s t m e n t B o a r d\n\nThis responds to your request for our opinion concerning petitions for\nreconsideration of certain \xe2\x80\x9c non-precedential\xe2\x80\x9d decisions issued by presiding offi\xc2\xad\ncials of the Merit Systems Protection Board (\xe2\x80\x9c MSPB\xe2\x80\x9d ). These decisions dispose\nof personnel disputes without publication of an opinion or statement explaining\nthe legal basis of the decisions. See Letter for Mr. Randolph Moss, Acting Assist\xc2\xad\nant Attorney General, Office of Legal Counsel, from John J. O \xe2\x80\x99Meara, General\nCounsel, Federal Retirement Thrift Investment Board (Nov. 6, 1998) ( \xe2\x80\x9c FRTIB\nLetter\xe2\x80\x9d ). As explained in your letter, the Office o f Personnel Management\n(\xe2\x80\x9c OPM \xe2\x80\x9d ) has taken the position that it is legally barred from petitioning for\nreconsideration o f such decisions, which effectively precludes the possibility of\nappealing such decisions to the U.S. Court of Appeals for the Federal Circuit.\nYour office disagrees with OPM\xe2\x80\x99s position on this issue.\nFollowing our consideration of submissions from your office and OPM ,1 we\nconclude that (1) under the governing provisions of 5 U.S.C.A. \xc2\xa7 7703(d) (West\nSupp. 1999) and 5 C.F.R.\xc2\xa7 1201.119(a)(2) (1997), OPM may petition for\nreconsideration of an MSPB decision only if the OPM Director determines, in\nher discretion, that such decision will have a substantial impact on a civil service\nlaw, rule, regulation, or policy directive; (2) the Director has statutory authority\nto petition for reconsideration of non-precedential MSPB decisions if the Director\nconcludes in the good faith exercise of her discretion that the decision has a\nsubstantial impact on a civil service law, rule, regulation, or policy directive; and\n(3) the Director also is vested with discretion under the statute to determine that\nnon-precedential MSPB decisions p er se fail to satisfy the substantial impact\nstandard and therefore may not be the subject of a petition for reconsideration\nunder the authority of 5 U.S.C. A. \xc2\xa7 7703(d).\n1 See FRTIB Letter; Letter for Randolph M oss, Assistant Attorney General, Office of Legal Counsel, from LorTaine\nLewis, General Counsel, Office o f Personnel M anagement (Jan. 15, 1999) ( \xe2\x80\x9c OPM Letter\xe2\x80\x9d ); Letter for Randolph\nMoss, Acting Assistant Attorney General, O ffice o f Legal Counsel, from John J. O \xe2\x80\x99Meara, General Counsel, Federal\nRetirement Thrift Investment Board (Feb. 5, 1999) ( \xe2\x80\x9c FRTIB Letter II\xe2\x80\x9d ) In addition to these written submissions,\nrepresentatives o f this Office met with representatives of the Federal Retirement Thrift Investment Board and OPM\non M arch 11, 1999, to consider oral presentations on the issues in question.\n\n202\n\n\x0cOPM Petitions fo r Reconsideration o f Non-Precedential MSPB Decisions\n\nI.\n\nFederal employees aggrieved by personnel decisions of their employing agencies\nmay seek relief by appealing to the MSPB. See 5 U.S.C.A. \xc2\xa77701 (1994). The\nMSPB may either hear such appeals itself or refer them to an administrative law\njudge or other presiding official it has designated to hear such cases. Id.\n\xc2\xa7 7701(b)(1). In cases in which the interpretation of the federal civil service laws\nis in issue, the OPM Director may intervene as of right, \xe2\x80\x9c as early in the pro\xc2\xad\nceeding as practicable,\xe2\x80\x9d provided that she determines that an erroneous decision\nwould have a substantial impact on any civil service law, rule, or regulation under\nOPM\xe2\x80\x99s jurisdiction. Id. \xc2\xa7 7701(d)(1).\nWhen the MSPB issues a ruling adverse to an employing agency, the agency\nitself is not authorized to seek reconsideration or to appeal. Rather, under 5\nU.S.C.A. \xc2\xa7 7703(d), only OPM is authorized to petition on behalf of federal agen\xc2\xad\ncies for judicial review of MSPB decisions. As the statute provides:\nThe Director of the Office of Personnel Management may obtain\nreview of any final order or decision of the Board by filing . . .\na petition for judicial review in the United States Court of Appeals\nfor the Federal Circuit if the D irector determines, in his discretion,\nthat the Board erred in interpreting a civil service law, rule, or\nregulation affecting personnel management and that the B oard\xe2\x80\x99s\ndecision will have a substantial impact on u civil service law, rule,\nregulation, or policy directive. If the Director did not intervene in\na matter before the Board, the D irector may not petition f o r review\no f a B oard decision under this section unless the Director first peti\xc2\xad\ntions the Board fo r a reconsideration o f its decision, and such peti\xc2\xad\ntion is denied.\nId. (emphasis added).\n\nThus, as a precondition to seeking judicial review, the OPM Director must first\ndetermine in her discretion \xe2\x80\x9c that the Board erred in interpreting a civil service\nlaw, rule, or regulation affecting personnel management and that the Board\xe2\x80\x99s deci\xc2\xad\nsion will have a substantial impact on a civil service law, rule, regulation, or\npolicy directive.\xe2\x80\x9d Id. In MSPB cases in which OPM has not previously intervened,\nmoreover, OPM may petition for judicial review only if it has first filed an\nunsuccessful petition for reconsideration with the MSPB. See Newman v. Corrado,\n897 F.2d 1579, 1580 (Fed. Cir. 1990).2 Consequently, unless OPM files a petition\n2 In some instances, the MSPB has denied reconsideration o f issues raised by OPM on the grounds that the issues\nraised did not satisfy the above-quoted standards o f 5 U S C .A \xc2\xa7 7703(d). See H om er v. B um s, 783 F.2d 196,\n198 (Fed. Cir. 1986) (discussed further, infra). As discussed in Point II.B, infra, however, the Federal C ircuit\xe2\x80\x99s\nContinued\n\n203\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nfor reconsideration in cases in which it has not intervened, an MSPB ruling\nadverse to a government agency is final and unappealable.\nUnder MSPB procedures, certain cases are disposed of by MSPB presiding offi\xc2\xad\ncials without written explanation or review by the full Board. The MSPB refers\nto such decisions as \xe2\x80\x98 \xe2\x80\x98non-precedential\xe2\x80\x99 \xe2\x80\x99 decisions because they are not considered\nto be binding on the MSPB in future cases. MSPB treats non-precedential\ndecisions as p e r se lacking a substantial impact on the civil service laws or regula\xc2\xad\ntions within the meaning of 5 U.S.C.A. \xc2\xa7 7703(d), and that treatment has been\nupheld by the U.S. Court of Appeals for the Federal Circuit, which hears all\nappeals from the MSPB. See Horner v. Burns, 783 F.2d at 201. In reliance on\nthe B um s opinion, moreover, OPM asserts that it will not and cannot petition\nfor reconsideration \xe2\x80\x94 and therefore cannot petition for judicial review \xe2\x80\x94 of any\nMSPB non-precedential decision. As OPM has explained its position:\n[T]he M SPB\xe2\x80\x99s practice of issuing non-precedential decisions that\nare insulated from OPM-initiated judicial review has been upheld\nby the United States Court o f Appeals for the Federal Circuit, the\ncourt that reviews MSPB decisions. H om er v. Bum s, 783 F.2d 196,\n200 (Fed. Cir. 1986). Based upon that precedent, OPM is unable\nto exercise its statutory authority to seek reconsideration and\nju d icia l review o f the M SPB\xe2\x80\x99s non-precedential O rder in this case.\n\nLetter for Hon. Roger W. Mehle, Executive Director, Federal Retirement Thrift\nInvestment Board, from Janice R. Lachance, Director, Office of Personnel\nManagement (June 3, 1998) (emphasis added). OPM has reaffirmed this position\nin a letter to this Office, stating:\nOPM is prohibited from seeking reconsideration o f a non-precedential MSPB decision because, by virtue o f the Federal Circuit\xe2\x80\x99s deci\xc2\xad\nsion in H om er, it may not lawfully make the substantial impact\ndetermination required by law to permit reconsideration and judicial\nreview.\nOPM Letter at 7.\nThe Federal Retirement Thrift Investment Board (\xe2\x80\x9c FRTIB\xe2\x80\x9d ), in contrast, con\xc2\xad\ntends that OPM retains discretionary authority to petition the MSPB for\nreconsideration of its decisions whether they are precedential or not. See FRTIB\nLetter at 2-3. Among other things, the FRTIB contends that some non-precedential\ndecisions issued by the MSPB do have a substantial impact on the civil service\nlaws and that the B um s opinion, which the FRTIB believes is applicable only\nopinion m Newm an v Lynch, 897 F.2d 1144, 1146 (Fed. Cir 1990), sharply circumscribes the M SPB\xe2\x80\x99s authority\nto \xe2\x80\x9c pass judgm ent\xe2\x80\x9d on O PM \xe2\x80\x99s discretionary decisions to seek reconsideration of MSPB decisions.\n\n204\n\n\x0cOPM Petitions fo r Reconsideration o f Non-Precedential MSPB Decisions\n\nto petitions for judicial review (as opposed to administrative reconsideration), does\nnot prohibit the OPM Director from exercising her discretion to petition for\nreconsideration of such decisions. See id. at 2-3; FRTIB Letter II at 3. Addition\xc2\xad\nally, the FRTIB disagrees with OPM\xe2\x80\x99s view that the sole purpose of petitions\nfor reconsideration of MSPB decisions is to satisfy a prerequisite to judicial\nreview. In the FRTIB\xe2\x80\x99s view, petitions for reconsideration serve the additional\nimportant purpose of affording the MSPB an opportunity to correct errors without\nthe necessity of judicial review. See FRTIB Letter at 2-3.\n\nn.\nA.\nApart from \xc2\xa7 7703(d)\xe2\x80\x99s provision that the submission and denial of a petition\nfor reconsideration of an MSPB decision is a prerequisite to judicial review in\ncases where OPM did not intervene before the MSPB, the statute provides no\nexpress standards governing when OPM may submit petitions for reconsideration\nor under what circumstances they may be granted. See 5 U.S.C.A. \xc2\xa7\xc2\xa77701-7703.\nIndeed, \xc2\xa7 7703(d)\xe2\x80\x99s judicial review provisions contain the statute\xe2\x80\x99s only reference\nto, or provision for, the reconsideration procedure. To resolve the questions pre\xc2\xad\nsented here, we must first determine whether the statute nonetheless is fairly read\nto incorporate a substantial impact standard as a prerequisite for seeking\nreconsideration as well as judicial review. We believe that il is.\nInitially, a requirement that OPM must make a substantial impact determination\nas a prerequisite to petitioning for reconsideration of MSPB decisions is logically\nconsistent with the overall statutory scheme. Such a determination is a prerequisite\nnot only to OPM\xe2\x80\x99s seeking intervention or petitioning for MSPB review o f an\ninitial decision, see 5 U.S.C. \xc2\xa7 7701(d)(1)(B) and (e)(2), but also to OPM\xe2\x80\x99s peti\xc2\xad\ntioning for judicial review of final MSPB decisions. In this regard, we note that\nan OPM petition for reconsideration in a case where it has not previously inter\xc2\xad\nvened is essentially a belated form of seeking both intervention and administrative\nreview. Because the statute requires a substantial impact determination as a pre\xc2\xad\nrequisite to each of those procedural steps, it would be anomalous if that require\xc2\xad\nment could be bypassed only when OPM seeks to enter the case through a petition\nfor reconsideration. Consequently, we agree with OPM that a substantial impact\ndetermination is required as a precondition to its petitioning for reconsideration\nunder \xc2\xa7 7703(d).\nTo be sure, the text of 5 U.S.C.A. \xc2\xa7 7703(d) does not specify that OPM may\nfile a petition for reconsideration of an MSPB decision only if that decision, in\nkeeping with the standards for seeking judicial review, \xe2\x80\x9c will have a substantial\nimpact on a civil service law, rule, regulation, or policy directive.\xe2\x80\x9d In contrast,\nas noted above, the statutory provisions governing both OPM \xe2\x80\x99s right to intervene\n205\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nin proceedings before the MSPB and its right to petition the full MSPB for review\nof an initial decision explicitly require an OPM determination that the case in\nquestion meets the substantial impact test. See id. \xc2\xa7 7701(d)(1)(B) and (e)(2). It\nmight therefore be argued that the absence of a \xe2\x80\x9c substantial impact\xe2\x80\x9d determina\xc2\xad\ntion requirement in \xc2\xa77703(d)\xe2\x80\x99s provision for petitions for reconsideration reflects\na conscious congressional choice to omit such a requirement, given that Congress\nknew how to, and did, make explicit provision for such a requirement in the case\nof other procedural steps before the MSPB.\nViewing the statutory scheme as a whole, however, we do not believe that this\nfactor should be considered dispositive in this context. Cf. 2A Norman J. Singer,\nSutherland on Statutory Construction \xc2\xa747.25 (5th ed. 1992) (the interpretive\nmaxim \xe2\x80\x9c expressio unius est exclusio alterius\xe2\x80\x9d should not be applied if its applica\xc2\xad\ntion would result in a contradiction or would not serve the purpose for which\na statute was enacted). In providing in \xc2\xa7 7703(d) that a petition for reconsideration\nwould be a prerequisite to OPM\xe2\x80\x99s obtaining judicial review of MSPB decisions\nin cases in which it had failed to seek intervention, Congress did not purport\nto establish the particular procedural requirements that would govern the filing\nand consideration of petitions for reconsideration. Rather, Congress merely speci\xc2\xad\nfied that OPM lacks authority to seek judicial review in a non-intervention case\nunless it seeks reconsideration and that request is denied. In contrast, Congress\ndid undertake to establish specific procedural requirements in its statutory provi\xc2\xad\nsions for intervention and petitions for administrative review by the full MSPB.\nSee 5 U.S.C. \xc2\xa7 7701(d)(1) and (e). Congress\xe2\x80\x99s greater specificity in addressing\nthese actions, however, does not imply that Congress intended different procedures\nto apply when OPM seeks reconsideration, and the structure of the Act supports\nthe view that the same substantial impact requirements should apply.\nThe conclusion that a substantial impact determination is required for petitions\nfor reconsideration is also consistent with the Senate Report accompanying the\nCivil Service Reform Act of 1978:\nA Committee amendment to this subsection limits the occasions\non which the OPM could petition the Board for review to only\nthose instances where the OPM director first determines that the\ndecision is erroneous and that, if allowed to stand, the decision\nwould have a substantial impact on the administration of the civil\nservice laws within OPM\xe2\x80\x99s jurisdiction. The OPM should limit the\ncases in which it seeks the review by the Board to those that are\nexceptionally important.\nS. Rep. No. 95-969, at 55 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2777.\nThe respective functions of OPM petitions for review and petitions for reconsider\xc2\xad\nation are so similar that it seems unlikely that Congress intended for them to\n206\n\n\x0cOPM Petitions fo r Reconsideration o f Non-Precedential MSPB Decisions\n\nbe governed by differing procedural standards in this respect. Further, because\n\xc2\xa7 7703(d) refers to OPM petitions for reconsideration by MSPB solely in the con\xc2\xad\ntext of establishing the preconditions to seeking judicial review, logic and consist\xc2\xad\nency suggest that the threshold standards for pursuing reconsideration should\nreflect the minimum standards for pursuing an appeal.3\nThis interpretation of the statute also accords with the MSPB regulations gov\xc2\xad\nerning OPM \xe2\x80\x99s submission of petitions for reconsideration. Those regulations\nprovide:\n(a) Criteria. Under 5 U.S.C. 7703(d), the Director of the Office\nof Personnel Management may file a petition for reconsideration\nof a Board final order if he or she determ ines :\n(1) That the Board erred in interpreting a civil service\nlaw, rule, or regulation affecting personnel management, and\n(2) That the B oard\xe2\x80\x99s decision will have a substantial\nimpact on a civil service law, rule, regulation, or policy\ndirective.\n5 C.F.R. 1201.119 (1997) (emphasis added).4 MSPB\xe2\x80\x99s rule requiring a substantial\nimpact determination by OPM represents a reasoned interpretation o f the statute\nto which OPM properly adheres, even if it goes beyond matters o f procedure\nand touches on the exercise of OPM\xe2\x80\x99s discretion. Moreover, although the statute\n(as discussed below) places the decision to seek reconsideration within O PM \xe2\x80\x99s\ndiscretion, the MSPB has a critical role in interpreting the statute, and OPM\nplainly may choose to follow the MSPB\xe2\x80\x99s reasoned interpretations even of OPM \xe2\x80\x99s\ndiscretionary powers.\nAccordingly, we conclude that the OPM Director must determine that an MSPB\ndecision satisfies the substantial impact test before she may properly file a petition\nfor reconsideration of such decision. We now consider how the OPM Director\xe2\x80\x99s\n3 As the MSPB explained its interpretation in one opinion1\nSuch a petitition [for reconsiderationj is a prerequisite for judicial review, and the statute does not establish\na different standard for . . reconsideraUon. Like a petition for judicial review, a petiuon by OPM for\nreconsideration must allege\nthat it will have a substantial impact on a civil service law, rule, regulation\nor policy directive.\nHammond v. Department o f Navy, 5 0 M S .P .R . 174, 178 (1991)\n4 In the absence of specific statutory provisions governing petitions for reconsideration of MSPB decisions, the\nagency charged with administration of the statute is generally authorized to fill in the interstices o f the statutory\nscheme through administrative rulemaking See, e .g , Public Service Co. v. US. Nuclear Regulatory Comm\xe2\x80\x99n, 582\nF 2 d 77, 82 (1st C ir 1978) ( \xe2\x80\x9c In a regulatory scheme where substantial discreUon is lodged with the administrative\nagency charged with its effectuation, it is to be expected that the agency will fill in the interstices left vacant by\nCongress \xe2\x80\x9d ); Precious Metals A sso cs, Inc. v\xc2\xbb. CFTC, 620 F 2d 900, 911 (1st Cir. 1980) (agency rulemaking pro\xc2\xad\nceedings \xe2\x80\x9c are designed to fill in the interstices o f a statute\xe2\x80\x9d ) In particular, judicial deference to agency rules \xe2\x80\x9c is\nespecially applicable\xe2\x80\x9d when the agency is \xe2\x80\x9c structuring its own rules o f procedure and methods o f inquiry \xe2\x80\x9d Kelley\nv. Selin, 42 F.3d 1501, 1511 (6th Cir. 1995).\n\n207\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\ndiscretion in making that substantial impact determination is affected by the nonprecedential status of the decision.\nB.\nIn Newman v. Lynch, 897 F.2d at 1145-47, the Federal Circuit endorsed a broad\ninterpretation of OPM \xe2\x80\x99s authority to petition for, and to obtain, meaningful\nreconsideration of MSPB decisions under 5 U.S.C.A. \xc2\xa7 7703(d). In that case, the\nMSPB had upheld a discharged federal employee\xe2\x80\x99s allegations of discrimination\non the basis of handicap. OPM filed a petition seeking reconsideration of the\nMSPB\xe2\x80\x99s decision, contending that the MSPB\xe2\x80\x99s finding that the employee had car\xc2\xad\nried his burden of proposing a \xe2\x80\x9c reasonable accommodation\xe2\x80\x9d for his disability\nwas inconsistent with prior MSPB decisions and erroneous as a matter of law.\n897 F.2d at 1145. The MSPB, however, refused to consider OPM\xe2\x80\x99s petition on\nthe merits, ruling that the decision in question \xe2\x80\x9c did not concern a civil service\nlaw\xe2\x80\x99 \xe2\x80\x99 and that OPM therefore lacked authority to petition for reconsideration under\nthe requirements o f \xc2\xa7 7703(d).\nThe Federal Circuit reversed, holding that \xe2\x80\x9c the MSPB has no authority to\nreview the Director\xe2\x80\x99s exercise of discretion in seeking reconsideration of an MSPB\ndecision\xe2\x80\x9d and rejecting \xe2\x80\x9c the Board\xe2\x80\x99s effort to restrict OPM with respect to what\nissues fall under OPM \xe2\x80\x99s authority granted in section 7703(d).\xe2\x80\x9d Id. at 1145-46.\nAs the court further explained: \xe2\x80\x9c The portion of section 7703(d) granting OPM\nthe right to seek reconsideration by the Board would be emasculated if the Board\nmay refuse reconsideration without addressing the merits of the substantive issues\nraised by OPM .\xe2\x80\x9d Id. at 1147. T he Newman opinion also emphasized the narrow\nscope of the court\xe2\x80\x99s prior holding in H om er v. Bum s, noting that the B um s court\n\xe2\x80\x9c meticulously limited the scope of its decision,\xe2\x80\x9d and stressing that \xe2\x80\x9c [w]e did\nnot recognize the broad authority now asserted by the Board to pass judgment\non the propriety of the [OPM] Director\xe2\x80\x99s exercise of discretion in seeking\nreconsideration.\xe2\x80\x9d 897 F.2d at 1146.5\nUnder the Lynch opinion, the MSPB lacks authority to circumscribe OPM\xe2\x80\x99s\ndiscretion in determining whether or not a particular MSPB decision may satisfy\nthe substantial impact standard. In light o f the broad discretionary authority\nallotted to OPM under Newman\'s analysis, we believe that OPM may properly\ndetermine that even a non-precedential MSPB decision may have a \xe2\x80\x9c substantial\nim pact\xe2\x80\x99 \xe2\x80\x99 in particular circumstances.\n5 See also Newman v. Corrado, where th e court invoked the legislative history of \xc2\xa7 7703(d) in explaining the\npurpose and significance o f petitions for reconsideration filed by OPM\nThe Senate Report [on 5 U.S.C \xc2\xa7 7703(d)] certainly suggests that something more than the equivalent\nof a functus officio response was contemplated in Board proceedings. The petition fo r reconsideration\nby OPM, in the words o f the Senate Report, provides " a n opportunity to consider the concerns o f O PM ."\nSee S. Rep. No. 95-985, supra at 2786.\n897 F 2d at 1582 (emphasis added).\n\n208\n\n\x0cOPM Petitions fo r Reconsideration o f Non-Precedential MSPB Decisions\n\nThe MSPB itself has recognized OPM\xe2\x80\x99s discretion in determining whether the\nstatutory prerequisites to intervening, appealing, or petitioning for reconsideration\nare satisfied. In Uhlig v. Department o f Justice , 70 M.S.P.R. 443 (1996), for\nexample, the Board stated:\nWe cannot . . . decline to consider the merits of the Director\xe2\x80\x99s\nintervention brief on the grounds that we disagree with his discre\xc2\xad\ntionary determination that the Board erred in interpreting a civil\nservice law, rule, regulation, or policy directive and that the Board\xe2\x80\x99s\ndecision will have a substantial impact on a civil service law, rule,\nregulation, or policy directive.\nId. at 445.\n\nIt is difficult to reconcile the foregoing precedents with the view that the\nMSPB\xe2\x80\x99s interpretation of the substantial impact test takes away OPM \xe2\x80\x99s discretion\n\nto find that a given non-precedential decision may in fact have a substantial impact\non a civil service law, rule, or policy directive, and therefore warrant filing a\npetition for reconsideration. Such a view would preclude OPM from exercising\nthe discretion recognized in the foregoing opinions, as well as in the M SPB\xe2\x80\x99s\nown regulation, see 5 C.F.R. \xc2\xa7 1201.119(a). That regulation authorizes the OPM\nDirector to file a petition for reconsideration when \xe2\x80\x9c he or she\xe2\x80\x9d \xe2\x80\x94 not the\nMSPB \xe2\x80\x94 determines that a decision will have the requisite substantial impact. Nei\xc2\xad\nther that regulation nor the Federal Circuit\xe2\x80\x99s opinion in Bum s provides that the\nDirector may make that discretionary determination only if it comports with the\nMSPB\xe2\x80\x99s interpretation of the substantial impact test. Such an interpretation would\nalso be inconsistent with Lynch\xe2\x80\x99s holding that the MSPB may not \xe2\x80\x9c pass judgment\non the propriety of the Director\xe2\x80\x99s exercise of discretion in seeking reconsider\xc2\xad\nation.\xe2\x80\x9d 897 F.2d at 1146. Just as the MSPB may not foreclose OPM \xe2\x80\x99s authority\nto petition for reconsideration by \xe2\x80\x9c determin[ing] which civil service laws fall\nwithin the responsibility of OPM,\xe2\x80\x9d id. (citing H om er v. Schuck, 843 F.2d 1368,\n1372 (Fed. Cir. 1986)), we do not believe it can do so by usurping OPM \xe2\x80\x99s\nauthority to make its own discretionary determinations regarding the substantial\nimpact standard.\nAlthough the MSPB has itself acknowledged the broad discretion allowed OPM\nunder the Lynch opinion, it has pointedly reserved the right to \xe2\x80\x9c question\xe2\x80\x9d OPM \xe2\x80\x99s\nauthority in submitting petitions for reconsideration of non-precedential decisions:\nNoting its previous decisions which had rejected restrictive\ninterpretations of OPM\xe2\x80\x99s authority to seek reconsideration under\nsection 7703(d), the [Lynch] court concluded that the Board may\nnot refuse to consider the Director\xe2\x80\x99s petition on the merits because\nit disagrees with the Director\xe2\x80\x99s discretionary determinations which\n209\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nthe Director is required to make before filing the petition. There\xc2\xad\nfore, in accordance with the court\xe2\x80\x99s decision, we hold that, with\nthe exception o f petitions f o r reconsideration o f nonprecedential\ndecisions, the Board may not question the authority of the Director\n\no f OPM to seek reconsideration of a Board decision, but must con\xc2\xad\nsider the Director\xe2\x80\x99s petition on the merits.\nHammond, 50 M.S.P.R. at 179-80 (1991) (emphasis added; citations and footnote\n\nomitted).6\nThe M SPB\xe2\x80\x99s opinion in Hammond asserts its authority to refuse reconsideration\nof non-precedential decisions \xe2\x80\x9c on the merits.\xe2\x80\x9d It does not establish that OPM\nlacks authority tosubm it such a petition as a predicate to seeking judicial review\nbefore the Federal Circuit under \xc2\xa7 7703(d). In this regard, we consider it signifi\xc2\xad\ncant that the B um s opinion upheld the M SPB\xe2\x80\x99s rule denying reconsideration of\nnon-precedential decisions on the carefully qualified grounds that it was \xe2\x80\x9c based\nupon sound policy considerations\xe2\x80\x9d and was an \xe2\x80\x9c appropriate practice fo r the Board\nto utilize in handling its heavy volume of cases.\xe2\x80\x9d 783 F.2d at 201 (emphasis\nadded). The court did not, however, hold that the MSPB was required to follow\nthat interpretation on the grounds that it was the only permissible interpretation\nof the statutory substantial impact standard. Nor did the court consider or decide\nwhether, as an objective matter, a non-precedential decision could never have a\n\xe2\x80\x9c substantial impact on civil service law, rule, regulation, or policy directive\xe2\x80\x9d from\nthe distinct perspective of the O P M D irector (as opposed to the \xe2\x80\x9c case manage\xc2\xad\nm ent\xe2\x80\x9d perspective of the MSPB). Hammond, 50 M.S.P.R. at 178.\nThus, we do not believe that B um s prohibits the OPM Director from petitioning\nfor reconsideration of a decision that she in good faith determines will, in fact,\nhave the requisite substantial impact. An MSPB presiding officer might decide\nwithout explanation, for example, that a major, newly adopted agency personnel\nmanagement policy directive was unlawfully applied to a particular employee.\nAlthough the policy directive would not be legally invalidated due to the nonprecedential nature of the decision, the decision might well deter agency managers\nfrom adhering to the policy directive and thus seriously undermine its future\napplication and utility. In the event that the OPM Director were to determine\nthat the decision had a substantial impact on the policy directive under the cir\xc2\xad\ncumstances, we do not believe she would be legally barred from submitting a\npetititon for reconsideration in accordance with the requirements of 5 U.S.C.A.\n\xc2\xa7 7703(d) and 5 C.F.R. \xc2\xa7 1201.119. Ultimately, then, the decision whether a nonprecedential MSPB decision has a substantial impact on the civil service laws\nor regulations so as to justify an OPM petition for reconsideration rests solely\n6 In support o f this reservation, the Board asserted that H o m er v Bum s had upheld the rule \xe2\x80\x9c that reconsideration\nof nonprecedential decisions is inappropriate \xe2\x80\x9c 50 M S P.R. at 180 n 4. The B um s decision, however, did not establish\nor uphold any rule precluding OPM from seeking reconsideration o f non-precedential decisions o f the MSPB. It\nnarrowly addressed the permissibility of the standards applied by MSPB in disposing of petitions for reconsideration\n\n210\n\n\x0cOPM Petitions fo r Reconsideration o f Non-Precedential MSPB Decisions\n\nin the discretion of OPM. The Director is not legally precluded from petitioning\nfor reconsideration of a non-precedential decision that she believes has such an\nimpact; nor is she required to do so. Although we recognize that non-precedential\ndecisions are generally unlikely to have a substantial impact on civil service laws,\nrules, regulations, and policies, we must also recognize that the OPM Director\nmight legitimately conclude that, in certain unique circumstances, the requirement\nis satisfied.\nC.\nIn H om er v. Burns, the court upheld the MSPB\xe2\x80\x99s practice of denying petitions\nfor reconsideration of unreviewed initial decisions of MSPB presiding officials\non the grounds that such decisions are not \xe2\x80\x9c precedents of the Board\xe2\x80\x9d and there\xc2\xad\nfore, for purposes of 5 U.S.C. \xc2\xa7 7703(d), \xe2\x80\x9c would not have a significant impact\nupon civil service laws, rules, regulations, and policies.\xe2\x80\x9d 783 F.2d at 199. As\nthe court explained:\nThe Board\xe2\x80\x99s treatment of unreviewed initial decisions of pre\xc2\xad\nsiding officials as non-precedential is based upon sound policy\nconsiderations and is a reasonable and appropriate practice for the\nBoard to utilize in handling its heavy volume of cases. . . .\n. . . . The Director has not given any convincing reason why\nthis practice of the Board is not an appropriate and proper method\nfor the Board to use in handling its large docket.\nId. at 201.\n\nAs we have shown, \xc2\xa7 7703(d) and 5 C.F.R. \xc2\xa7 1201.119(a) vest the OPM Director\nwith broad discretion in determining whether to pursue an appeal from, or a peti\xc2\xad\ntion for reconsideration of, an MSPB decision. In exercising that discretion, we\nbelieve the Director is free to follow the MSPB\xe2\x80\x99s interpretation of the substantial\nimpact test upheld in Bum s and adopt a p e r se rule that non-precedential MSPB\ndecisions do not satisfy that test and therefore cannot provide justification for\na petition for reconsideration. Indeed, insofar as the Director concludes that non\xc2\xad\nprecedential decisions, by their very nature, do not satisfy the substantial impact\nstandard, a practice of declining to seek reconsideration of non-precedential\ndecisions would appear to conform to the governing MSPB regulation, see 5\nC.F.R. \xc2\xa71201.119. As discussed in Point II.B, however, we do not believe that\nsuch a conclusion is legally compelled by statute or case law.\n\n211\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nConclusion\nOPM may petition for reconsideration of an MSPB decision only if the OPM\nDirector determines that the decision will satisfy the substantial impact standard.\nAlthough the Director may exercise her discretion to adopt a p er se rule that\nnon-precedential MSPB decisions never satisfy the substantial impact standard,\nthe H o m er v. B um s opinion does not dictate such a practice nor prevent the\nDirector from exercising her statutory discretion to determine on a case-by-case\nbasis whether that standard is satisfied on the particular facts of each non\xc2\xad\nprecedential decision.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n212\n\n\x0c'


b'(Slip Opinion)\n\nHome Confinement of Federal Prisoners\nAfter the COVID-19 Emergency\nThe Coronavirus Aid, Relief, and Economic Security Act authorizes the Director of the\nBureau of Prisons to place prisoners in home confinement only during the Act\xe2\x80\x99s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP\xe2\x80\x99s functioning. Should that period end, or should the\nAttorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement\nunder 18 U.S.C. \xc2\xa7 3624(c)(2).\nBOP\xe2\x80\x99s authority under 18 U.S.C. \xc2\xa7 3621(a) and (b) does not provide an alternative basis\nfor authorizing continued home confinement for prisoners ineligible for continuing\nhome confinement under section 3624(c)(2).\nJanuary 15, 2021\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nFEDERAL BUREAU OF PRISONS\nThe Federal Bureau of Prisons (\xe2\x80\x9cBOP\xe2\x80\x9d or \xe2\x80\x9cthe Bureau\xe2\x80\x9d) has statutory\nauthority to place a prisoner serving a term in a federal prison in home\nconfinement for the concluding portion of his sentence. See 18 U.S.C.\n\xc2\xa7 3624(c)(2). In connection with the COVID-19 pandemic, Congress\nexpanded the authority of the Director of BOP to place federal prisoners in home confinement earlier than that statutory period. See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136,\n\xc2\xa7 12003(b)(2), 134 Stat. 281, 516 (2020) (\xe2\x80\x9cCARES Act\xe2\x80\x9d). The question\nis what happens to these prisoners once the pandemic emergency ends.\nAt that time, some inmates will have completed their sentences or be\nsufficiently close to the end to be eligible for home confinement. Other\ninmates, however, may have a substantial time to go before becoming\neligible. Although the pandemic emergency remains ongoing, the issue\narises because BOP must plan for an eventuality where it might need to\nreturn a significant number of prisoners to correctional facilities.\nWe conclude that the CARES Act authorizes the Director of BOP to\nplace prisoners in home confinement only during the statute\xe2\x80\x99s covered\nemergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP\xe2\x80\x99s functioning. See id.\nShould that period end, or should the Attorney General revoke the find1\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\ning, the Bureau would be required to recall the prisoners to correctional\nfacilities unless they are otherwise eligible for home confinement under\n18 U.S.C. \xc2\xa7 3624(c)(2). We also conclude that the general imprisonment\nauthorities of 18 U.S.C. \xc2\xa7 3621(a) and (b) do not supplement the CARES\nAct authority to authorize home confinement under the Act beyond the\nlimits of section 3624(c)(2).\nI.\nSection 3621(a) of title 18 of the United States Code instructs BOP to\nmaintain custody of a person sentenced to a term of imprisonment until\n\xe2\x80\x9cthe expiration of the term imposed, or until earlier released for satisfactory behavior pursuant to the provisions of section 3624.\xe2\x80\x9d Section 3621(b)\nassigns BOP the responsibility of \xe2\x80\x9cdesignat[ing] the place of the prisoner\xe2\x80\x99s imprisonment\xe2\x80\x9d at a \xe2\x80\x9cfacility,\xe2\x80\x9d subject to several considerations such\nas bed availability, the security designation of the prisoner, and proximity\nto the prisoner\xe2\x80\x99s residence. Section 3621(b) also authorizes the Bureau \xe2\x80\x9cat\nany time,\xe2\x80\x9d subject to those same factors, to \xe2\x80\x9cdirect the transfer of a prisoner from one penal or correctional facility to another.\xe2\x80\x9d\nSection 3624(c) governs both home confinement and other forms of\nwhat the statute calls \xe2\x80\x9cprerelease custody\xe2\x80\x9d\xe2\x80\x94lower-security conditions of\nconfinement that help prepare a prisoner for eventual release. Section\n3624(c)(1) provides that BOP \xe2\x80\x9cshall, to the extent practicable, ensure that\na prisoner serving a term of imprisonment spends a portion of the final\nmonths of that term (not to exceed 12 months), under conditions that will\nafford that prisoner a reasonable opportunity to adjust to and prepare for\nthe reentry of that prisoner into the community,\xe2\x80\x9d such as a community\ncorrectional facility. Section 3624(c)(2) then states that BOP \xe2\x80\x9cmay\xe2\x80\x9d use\nits prerelease custody authority to place a prisoner in home confinement\n\xe2\x80\x9cfor the shorter of 10 percent of the term of imprisonment of that prisoner\nor 6 months.\xe2\x80\x9d Section 3624(c)(2) thus constrains BOP\xe2\x80\x99s confinement\nauthority by limiting a prisoner\xe2\x80\x99s time in home confinement to no more\nthan six of the final months of a prisoner\xe2\x80\x99s term.\nRecognizing that the COVID-19 pandemic was having a substantial\neffect on federal correctional institutions, Congress in section 12003(b)(2)\nof the CARES Act expanded BOP\xe2\x80\x99s preexisting discretion to employ\nhome confinement. Section 12003(b)(2) provides that\n2\n\n\x0cHome Confinement of Federal Prisoners After the COVID-19 Emergency\n\n[d]uring the covered emergency period, if the Attorney General\nfinds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the\nmaximum amount of time for which the Director is authorized to\nplace a prisoner in home confinement under the first sentence of\nsection 3624(c)(2) of title 18, United States Code, as the Director\ndetermines appropriate.\nThe \xe2\x80\x9c\xe2\x80\x98covered emergency period\xe2\x80\x99\xe2\x80\x9d starts on \xe2\x80\x9cthe date on which the\nPresident declared a national emergency under the National Emergencies\nAct with respect to the Coronavirus Disease 2019 (COVID-19)\xe2\x80\x9d and ends\n\xe2\x80\x9con the date that is 30 days after the date on which the national emergency declaration terminates.\xe2\x80\x9d CARES Act \xc2\xa7 12003(a)(2), 134 Stat. at 516\n(citation omitted).\nThe President declared the COVID-19 pandemic a national emergency on March 13, 2020, two weeks before the enactment of the CARES\nAct. See Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, Proc. No. 9994, 85 Fed. Reg.\n15,337 (Mar. 18, 2020). On April 3, 2020, the Attorney General found\nthat COVID-19 emergency conditions were \xe2\x80\x9cmaterially affecting the\nfunctioning of the Bureau of Prisons.\xe2\x80\x9d Memorandum for the Director of\nthe Bureau of Prisons from the Attorney General, Re: Increasing Use of\nHome Confinement at Institutions Most Affected by COVID-19 at 1\n(Apr. 3, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_\nconfinement_april3.pdf (\xe2\x80\x9cAttorney General Memorandum\xe2\x80\x9d).\nYou have advised us that following that determination, the BOP Director exercised his CARES Act authority by transferring thousands of\nfederal prisoners into home confinement. As of December 2020, BOP had\ntransferred 18,112 inmates to home confinement since enactment of the\nauthority, out of a federal prison population of approximately 150,000\ninmates. See Statement of Michael D. Carvajal, Director, BOP, Before the\nSubcommittee on Crime, Terrorism, and Homeland Security, U.S. House\nJudiciary Committee 2, 6 (Dec. 2, 2020) (\xe2\x80\x9cCarvajal Testimony\xe2\x80\x9d). We\nunderstand that approximately 40 percent of those prisoners would not\nhave been eligible for such transfers absent the emergency authority. 1\n1 See E-mail for Jennifer Mascott & Conor Clarke, Office of Legal Counsel, from\nKenneth P. Hyle, BOP, Re: Draft OLC Opinion on the CARES Act Home Confinement\nAuthority (Jan. 14, 2021, 2:46 PM).\n\n3\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nBOP has indicated that it will continue to conduct individualized assessments to make home confinement placements for the duration of the\npandemic. Id. at 6. These transfers have carried out the Attorney General\xe2\x80\x99s instructions to, where possible, move vulnerable inmates with\nCenters for Disease Control-established COVID-19 risk factors out of\ninstitutions with significant infection rates, following a 14-day quarantine\nperiod to prevent transmission during transfer. Attorney General Memorandum at 1\xe2\x80\x932.\nThe question now is what will happen when BOP\xe2\x80\x99s emergency authority under section 12003(b)(2) of the CARES Act ends. That issue\nhas important practical consequences because many of these thousands\nof prisoners are currently in home confinement earlier than section\n3624(c)(2) would permit. You have explained that BOP has always had\nthe discretion to return inmates to BOP facilities upon, or even prior to,\nthe termination of the covered pandemic period. But you have suggested\nthat BOP might continue home confinement placements afterwards, on the\ntheory that BOP properly exercised its authority to \xe2\x80\x9clengthen the maximum amount of time\xe2\x80\x9d for home confinement during the emergency and\nthat the consequences of those decisions might continue, even though the\nauthority to make the decision in the first instance has lapsed. See Bureau\nof Prisons, Home Confinement Under the CARES Act at 2 (Nov. 20,\n2020).\nWe agree that the CARES Act does not alter BOP\xe2\x80\x99s discretion to return\nprisoners to facilities either during the covered period or right when it\nends. But once that authority expires, we believe that BOP must respect\nthe time limits under section 3624(c)(2) for all federal prisoners, including those who had been transferred to home confinement prior to the final\nmonths of their term under the special CARES Act placement authority.\nII.\nSection 12003(b)(2) allows the Director, \xe2\x80\x9c[d]uring\xe2\x80\x9d the covered emergency period and based on a finding from the Attorney General, to\n\xe2\x80\x9clengthen the maximum amount of time for which [he] is authorized to\nplace a prisoner in home confinement.\xe2\x80\x9d Once the Director\xe2\x80\x99s authority in\nsection 12003(b)(2) expires, then so too does his authority to keep inmates in home confinement under this provision.\n4\n\n\x0cHome Confinement of Federal Prisoners After the COVID-19 Emergency\n\nSection 12003(b)(2) is the sole source of the Director\xe2\x80\x99s \xe2\x80\x9cauthori[ty]\xe2\x80\x9d to\n\xe2\x80\x9clengthen the maximum amount of time\xe2\x80\x9d that applies to the sentence of an\ninmate subject to home confinement \xe2\x80\x9cunder the first sentence of section\n3624(c)(2).\xe2\x80\x9d Section 3624(c)(2), in turn, limits a term of home confinement to \xe2\x80\x9cthe shorter of 10 percent of the term of imprisonment of that\nprisoner or 6 months.\xe2\x80\x9d In connection with the pandemic, Congress conferred upon the Director broad authority to disregard the ordinarily strict\ntime limitations of section 3624(c)(2) in favor of any length that he \xe2\x80\x9cdetermines appropriate.\xe2\x80\x9d The scope of that authority, however, is keyed to,\nand circumscribed by, the emergency nature of the circumstances that\nCongress addressed both in this particular provision and in provisions\nthroughout the bill.\nAccordingly, we think that once the CARES Act authority evaporates,\nthe maximum term of home confinement must govern. See 62 Cases,\nMore or Less, Each Containing Six Jars of Jam v. United States, 340 U.S.\n593, 600 (1951) (\xe2\x80\x9c[W]e must take care not to extend the scope of the\nstatute beyond the point where Congress indicated it would stop.\xe2\x80\x9d); see\nalso Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,\n140 S. Ct. 2367, 2380 (2020) (\xe2\x80\x9cOur analysis begins and ends with the\ntext.\xe2\x80\x9d (internal quotation marks omitted)); Barnhart v. Peabody Coal Co.,\n537 U.S. 149, 174\xe2\x80\x9375 (2003) (Scalia, J., dissenting) (\xe2\x80\x9cWhen a power is\nconferred for a limited time, the automatic consequence of the expiration\nof that time is the expiration of the power.\xe2\x80\x9d). Once the CARES Act authority expires, BOP\xe2\x80\x99s obligation to respect section 3624(c)(2)\xe2\x80\x99s time\nlimit applies to all prisoners remaining in BOP custody, including those\nwho had been placed early in home confinement in response to the\nCOVID-19 emergency.\nThis reading of section 12003(b)(2) is consistent with the structure of\nthe CARES Act, which provided a variety of forms of temporary emergency relief to address a once-in-a-century global pandemic. See, e.g.,\nCARES Act \xc2\xa7 1109 (providing loan programs during the national emergency); id. \xc2\xa7 1113 (authorizing bankruptcy relief to address the emergency); id. \xc2\xa7 1114 (providing emergency rulemaking authority to the Administrator of the Small Business Administration); id. \xc2\xa7 1102(a)(2) (ending\nthe \xe2\x80\x9ccovered period\xe2\x80\x9d for paycheck protection on June 30, 2020); id.\n\xc2\xa7 1108(c)(1) (authorizing the waiver, for a 3-month period starting on the\ndate of enactment, of requirements that minority business centers provide\n5\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nmatching funds when receiving certain federal grants if the center is\nunable to raise the funds or has lost revenue); id. \xc2\xa7 2102(b), (c)(2) (creating a new unemployment assistance benefit, for people otherwise ineligible for such compensation, that terminates after 39 weeks); id. \xc2\xa7\xc2\xa7 3201\xe2\x80\x93\n3226 (covering health care provisions during the national emergency).\nThe Director has used the particularized pandemic-related emergency\nauthority in the CARES Act to put thousands of prisoners in home confinement who were not otherwise eligible, including inmates whose terms\nof imprisonment might stretch far beyond the pandemic\xe2\x80\x94long after the\nemergency conditions that prompted the granting of this authority will\nhave ceased, and well beyond the default time limits for home confinement specified in section 3624(c)(2). If Congress had fundamentally\naltered the structure of home confinement beyond the emergency circumstance that prompted the enactment of section 12003(b)(2), then it would\nhave said so. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)\n(\xe2\x80\x9cIn ascertaining the plain meaning of [a] statute, the court must look to\nthe particular statutory language at issue, as well as the language and\ndesign of the statute as a whole.\xe2\x80\x9d); cf. Whitman v. Am. Trucking Ass\xe2\x80\x99ns,\n531 U.S. 457, 468 (2001) (recognizing that Congress \xe2\x80\x9cdoes not alter the\nfundamental details of a regulatory scheme in vague terms or ancillary\nprovisions\xe2\x80\x9d).\nThis interpretation finds further support from section 12003\xe2\x80\x99s expiration provision, which specifies that the Director\xe2\x80\x99s expanded discretion\nover home confinement ends \xe2\x80\x9con the date that is 30 days after the date on\nwhich the national emergency declaration terminates\xe2\x80\x9d (emphasis added).\nIf Congress had expected that the termination of the Director\xe2\x80\x99s expanded\nauthority would have no operational effects on prisoners already in home\nconfinement, then his placement authority could simply have terminated\nwith the emergency. See, e.g., Murphy v. Smith, 138 S. Ct. 784, 789\n(2018) (noting that \xe2\x80\x9csurrounding statutory structure\xe2\x80\x9d may reinforce a\nconclusion about an individual provision); cf. Wis. Cent. Ltd. v. United\nStates, 138 S. Ct. 2067, 2074 (2018) (finding confirmation for the Court\xe2\x80\x99s\ninterpretive analysis where an alternative reading would make aspects of\nthe relevant statutory and regulatory scheme unnecessary). We think that\nthis 30-day period suggests that Congress had recognized that the termination of the emergency would have operational consequences and thus\ngave BOP 30 days to engage in the logistical operations needed to remove\n6\n\n\x0cHome Confinement of Federal Prisoners After the COVID-19 Emergency\n\nprisoners from home confinement who were not otherwise eligible to\nserve there.\nWe do not believe that an alternative interpretation of section\n12003(b)(2)\xe2\x80\x94one that reads the decision \xe2\x80\x9cto place a prisoner in home\nconfinement\xe2\x80\x9d as though it were a discrete action requiring statutory authority only at the time that it is made\xe2\x80\x94would be tenable. The decision\n\xe2\x80\x9cto place\xe2\x80\x9d a prisoner in home confinement is not a permanent, final decision, and BOP has the discretion to reconsider home confinement at any\npoint. That decision requires ongoing action, and therefore continuing\nlegal authority. Cf. CARES Act \xc2\xa7 12003(b)(2), 134 Stat. at 516 (defining\nthe emergency authority as authority to \xe2\x80\x9clengthen the maximum amount\nof time\xe2\x80\x9d for the Director\xe2\x80\x99s exercise of home confinement authority\xe2\x80\x94\naction involving an ongoing time period (emphasis added)); 8 Oxford\nEnglish Dictionary 825 (2d ed. 1989) (\xe2\x80\x9clengthen\xe2\x80\x9d: \xe2\x80\x9c[t]o make longer,\nincrease the length of \xe2\x80\x9d). BOP and the probation system, further, have a\ncontinuing relationship with prisoners in prerelease custody and home\nconfinement. Under section 3624(c)(3) of title 18, for instance, the United\nStates probation system \xe2\x80\x9cshall, to the extent practicable, offer assistance\xe2\x80\x9d\nto prisoners in home confinement. BOP\xe2\x80\x99s home confinement program\nguidance further contemplates daily monitoring, weekly in-person meetings, drug and alcohol testing, counseling, and more. See generally BOP\nProgram Statement, CCD No. 7320.01 (Sept. 6, 1995) (updated and\nreissued Dec. 15, 2017) (\xe2\x80\x9cHome Confinement Program Statement\xe2\x80\x9d).\nThese ongoing administrative duties make clear that the decision to place\na prisoner in \xe2\x80\x9chome confinement\xe2\x80\x9d is not a one-time event and that BOP\nretains the discretion to reassess the prisoner\xe2\x80\x99s status at any time during\nhome confinement. The time limits of section 3624(c)(2) therefore apply.\nIII.\nSeparate from the CARES Act, you have suggested that BOP may have\ndiscretion under 18 U.S.C. \xc2\xa7 3621(a) and (b) to keep prisoners in home\nconfinement who had been properly placed there during the emergency\nperiod. 2 Indeed, the home confinement statute makes clear that nothing in\nit \xe2\x80\x9cshall be construed to limit or restrict\xe2\x80\x9d the Director\xe2\x80\x99s authority \xe2\x80\x9cunder\n2 See E-mail for Liam P. Hardy et al., Office of Legal Counsel, from Kenneth Hyle,\nBOP, Re: 2002 OLC Memorandum on BOP Discretion (Dec. 7, 2020, 9:27 AM).\n\n7\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nsection 3621.\xe2\x80\x9d Id. \xc2\xa7 3624(c)(4). But we do not agree that BOP\xe2\x80\x99s authority\nunder section 3621(a) and (b) provides additional discretionary authority\nto address home confinement in the first place.\nA.\nSection 3621 states, in relevant part, that persons sentenced to imprisonment \xe2\x80\x9cshall be committed to the custody of the Bureau of Prisons\nuntil the expiration of the term imposed.\xe2\x80\x9d Id. \xc2\xa7 3621(a). It then provides\nstandards by which the Bureau \xe2\x80\x9cshall designate the place of the prisoner\xe2\x80\x99s imprisonment\xe2\x80\x9d\xe2\x80\x94but only at a \xe2\x80\x9cpenal or correctional facility.\xe2\x80\x9d Id.\n\xc2\xa7 3621(b). The text indicates that BOP is not free under this provision to\ndesignate a \xe2\x80\x9cplace\xe2\x80\x9d of any type as the site of the prisoner\xe2\x80\x99s confinement,\nbut rather contemplates that it will be at a \xe2\x80\x9cfacility.\xe2\x80\x9d See id. (\xe2\x80\x9cThe Bureau\nof Prisons shall designate the place of the prisoner\xe2\x80\x99s imprisonment, and\nshall . . . place the prisoner in a facility.\xe2\x80\x9d); id. (\xe2\x80\x9cIn designating the place\nof imprisonment or making transfers under this subsection, . . . [t]he\nBureau may at any time . . . direct the transfer of a prisoner from one\npenal or correctional facility to another.\xe2\x80\x9d); id. \xc2\xa7 3622 (specifying when a\nprisoner may be temporarily released from the \xe2\x80\x9cplace of his imprisonment\xe2\x80\x9d before being \xe2\x80\x9creturn[ed] to the same or another facility\xe2\x80\x9d). We do\nnot believe that home confinement constitutes a \xe2\x80\x9cfacility\xe2\x80\x9d within the\nmeaning of section 3621(b).\nThe statute does not define \xe2\x80\x9cfacility,\xe2\x80\x9d but the ordinary meaning of the\nterm is not readily understood to mean a \xe2\x80\x9chome.\xe2\x80\x9d Compare Webster\xe2\x80\x99s\nThird New International Dictionary 812\xe2\x80\x9313 (1961) (defining \xe2\x80\x9cfacility\xe2\x80\x9d as\n\xe2\x80\x9csomething\xe2\x80\x9d like \xe2\x80\x9ca hospital,\xe2\x80\x9d that is \xe2\x80\x9cbuilt . . . or established to perform\nsome particular function or to serve or facilitate some particular end\xe2\x80\x9d),\nwith id. at 1082 (defining \xe2\x80\x9chome\xe2\x80\x9d as \xe2\x80\x9cthe house and grounds . . . habitually occupied by a family\xe2\x80\x9d); compare also The Random House Dictionary\nof the English Language 690 (2d. ed. 1987) (defining \xe2\x80\x9cfacility\xe2\x80\x9d as \xe2\x80\x9csomething designed, built, installed, etc., to serve a specific function affording\na convenience or service,\xe2\x80\x9d such as \xe2\x80\x9ctransportation facilities\xe2\x80\x9d or \xe2\x80\x9ceducational facilities\xe2\x80\x9d or \xe2\x80\x9ca new research facility\xe2\x80\x9d), with id. at 913 (defining\n\xe2\x80\x9chome\xe2\x80\x9d as \xe2\x80\x9ca house, apartment, or other shelter that is the usual residence\nof a person\xe2\x80\x9d). Other provisions in title 18 speak of \xe2\x80\x9cfacility\xe2\x80\x9d in a manner\ninconsistent with thinking the term would include a \xe2\x80\x9chome.\xe2\x80\x9d Section 3585\nof title 18, for instance, provides that \xe2\x80\x9ca term of imprisonment\xe2\x80\x9d com8\n\n\x0cHome Confinement of Federal Prisoners After the COVID-19 Emergency\n\nmences on a date connected to the prisoner\xe2\x80\x99s transportation to \xe2\x80\x9cthe official\ndetention facility at which the sentence is to be served.\xe2\x80\x9d Section 3624\nitself reinforces the distinction between a \xe2\x80\x9chome\xe2\x80\x9d and a \xe2\x80\x9cfacility\xe2\x80\x9d: section\n3624(c)(1) refers to a \xe2\x80\x9ccommunity correctional facility\xe2\x80\x9d (emphasis added)\xe2\x80\x94a reference followed immediately by subsection (c)(2)\xe2\x80\x99s separate\nprovision governing \xe2\x80\x9chome confinement.\xe2\x80\x9d See also 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273,\ndiv. B, \xc2\xa7 2411(a)(1), 116 Stat. 1758, 1799 (2002) (distinguishing between\n\xe2\x80\x9ccommunity corrections facilities\xe2\x80\x9d and \xe2\x80\x9chome confinement\xe2\x80\x9d). And section\n3621(b) contrasts a prisoner\xe2\x80\x99s \xe2\x80\x9cresidence\xe2\x80\x9d with his \xe2\x80\x9cplace of imprisonment\xe2\x80\x9d and \xe2\x80\x9cfacility,\xe2\x80\x9d requiring BOP to ensure to the extent practicable\nthat the imprisonment facility is within 500 miles of the prisoner\xe2\x80\x99s primary residence. This distinction would be anomalous if a \xe2\x80\x9cfacility\xe2\x80\x9d could,\nunder the discretion of that provision, include one\xe2\x80\x99s ordinary residence or\nhome.\nThis reading accords with the few district court decisions that have similarly observed that BOP\xe2\x80\x99s discretion under section 3621(b) to select a\n\xe2\x80\x9cpenal or correctional facility\xe2\x80\x9d does not extend to home confinement\nunder the current version of 18 U.S.C. \xc2\xa7 3624(c)(2). 3 Numerous courts\nhave similarly read section 3624(c)(2) to impose a firm limit on BOP\xe2\x80\x99s\nhome confinement discretion. 4 We have not identified any case concluding otherwise.\n3 See, e.g., United States v. Orozco, No. 3:15-CR-00038-RCJ-WGC, 2020 WL\n3047471, at *1 n.1 (D. Nev. June 8, 2020) (\xe2\x80\x9cWhile Congress ordered the BOP to\nconsider court recommendations about the most appropriate \xe2\x80\x98penal or correctional\nfacility\xe2\x80\x99 in \xc2\xa7 3621(b), it failed to include \xe2\x80\x98home confinement\xe2\x80\x99 in this provision.\xe2\x80\x9d); Toole\nv. Krueger, No. 12-CV-2445-PJS-TNL, 2012 WL 6621681, at *3 (D. Minn. Dec. 19,\n2012) (\xe2\x80\x9cIt may be true that an inmate\xe2\x80\x99s home is not a \xe2\x80\x98penal or correctional facility\xe2\x80\x99\nwithin the meaning of \xc2\xa7 3621(b).\xe2\x80\x9d).\n4 See Bonneau v. Salazar, 754 F. App\xe2\x80\x99x 624, 624 (9th Cir. 2019) (\xe2\x80\x9c18 U.S.C.\n\xc2\xa7 3624(c)(2) barred the BOP from placing him in home confinement for more than six\nmonths or 10 percent of the underlying sentence, whichever is less.\xe2\x80\x9d); Guess v. Werlinger,\n421 F. App\xe2\x80\x99x 215, 217 (3d Cir. 2011) (\xe2\x80\x9cThe 6 months of home confinement is not additional to the 12 months of prerelease custody. . . . We also reject Guess\xe2\x80\x99s contention that\nthe scheduling of the prerelease hearing at 17 to 19 months before a projected release date\nruns afoul of 18 U.S.C. \xc2\xa7 3621(b).\xe2\x80\x9d). Our reading of the statute also is consistent with\nmultiple district court decisions to have considered the issue. See, e.g., Lyttle v. Inch, No.\n2:17-CV-00153-JMS-DLP, 2018 WL 1410192, at *2 (S.D. Ind. Mar. 21, 2018) (\xe2\x80\x9c[T]his\nstatute gives the BOP discretion to place Mr. Lyttle in a community correctional facility\n\n9\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nOur interpretation is also consistent with a related body of precedent\ninterpreting section 3585(b) of title 18, which mandates that \xe2\x80\x9c[a] defendant . . . be given credit toward the service of a term of imprisonment for\nany time he has spent in official detention prior to the date the sentence\ncommences.\xe2\x80\x9d The Supreme Court has held that a defendant must be in a\n\xe2\x80\x9cpenal or correctional facility,\xe2\x80\x9d as used in section 3621(b), to receive\ncredit for \xe2\x80\x9cofficial detention.\xe2\x80\x9d See Reno v. Koray, 515 U.S. 50, 58 (1995).\nLower courts have applied Koray to conclude that \xe2\x80\x9chome detention\xe2\x80\x9d does\nnot constitute time in a \xe2\x80\x9cpenal or correctional facility\xe2\x80\x9d for purposes of this\nprovision. See, e.g., United States v. Piper, 525 F. App\xe2\x80\x99x 205, 209\xe2\x80\x9310 (3d\nCir. 2013) (\xe2\x80\x9cAlthough he was confined at home, he was not detained in a\npenal or correctional facility.\xe2\x80\x9d); United States v. Polydore, 493 F. App\xe2\x80\x99x\n496, 506 (5th Cir. 2012) (Owen, J., concurring) (\xe2\x80\x9cAlthough confinement\nin a community center was at issue in Koray, and the statute under scrutiny was \xc2\xa7 3585, the rationale of Koray applies with equal force to home\ndetention.\xe2\x80\x9d). We think that section 3624(c)(2) should be given a similar\nreading.\nFinally, our reading is consistent with BOP\xe2\x80\x99s own regulations and\nprogram guidance. A 2008 interim rule (while not currently in force)\nstated that \xe2\x80\x9c[i]nmates may be designated to home detention as a condition of pre-release custody and programming during the final months of\nthe inmate\xe2\x80\x99s term of imprisonment, not to exceed the shorter of ten\npercent of the inmate\xe2\x80\x99s term of imprisonment or six months.\xe2\x80\x9d 28 C.F.R.\n\xc2\xa7 570.21(b). 5 BOP\xe2\x80\x99s own home confinement program guidance emphasizfor no more than 12 months and in home confinement for no more than 6 months. Any\ndetermination must be made in a manner consistent with the five factors in \xc2\xa7 3621(b).\xe2\x80\x9d);\nUnited States v. Miranda, No. 3:16-CR-00250-GPC, 2017 WL 3219941, at *3 n.2 (S.D.\nCal. July 28, 2017) (\xe2\x80\x9cAlthough Miranda has asked the Court to grant him three months in\nhome confinement, the Court notes that the maximum time allowable in home confinement is \xe2\x80\x98the shorter of 10 percent of the term of imprisonment of that prisoner or 6\nmonths.\xe2\x80\x99\xe2\x80\x9d (citation omitted)).\n5 This rule was initially promulgated in 2008 as an interim final rule. See Pre-Release\nCommunity Confinement, 73 Fed. Reg. 62,440, 62,443 (Oct. 21, 2008). While this text\nremains codified, see 28 C.F.R. \xc2\xa7 570.21(b) (2020), the interim rule was vacated on\nprocedural grounds for failure to follow Administrative Procedure Act notice-andcomment procedures and was not finalized. See Sacora v. Thomas, No. CV 08-578-MA,\nDoc. No. 57 at 22\xe2\x80\x9325, 34 (D. Or. June 16, 2010) (vacating the rule for failure to establish\ngood cause to forgo notice and comment); see also Sacora v. Thomas, 628 F.3d 1059,\n\n10\n\n\x0cHome Confinement of Federal Prisoners After the COVID-19 Emergency\n\nes that it \xe2\x80\x9cdoes not have statutory authority to designate a home confinement program for an inmate at the beginning of his or her sentence,\xe2\x80\x9d\ngiven section 3621(b)\xe2\x80\x99s requirement that the Bureau \xe2\x80\x9cdesignate any available penal or correctional facility as the place of a prisoner\xe2\x80\x99s imprisonment.\xe2\x80\x9d Home Confinement Program Statement at 1; see also id. att. B,\nat 2 (\xe2\x80\x9cInmates on home confinement shall return to the facility at least\ntwice each week.\xe2\x80\x9d); BOP, Legal Resource Guide to the Federal Bureau of\nPrisons 46 (2019) (\xe2\x80\x9cInmates may participate in home confinement only\nduring the last 10% of their sentence or 6 months prior to their Good\nConduct Release date, whichever is less.\xe2\x80\x9d). We think these statements\nclearly rule out an interpretation that section 3621(a) and (b) provide BOP\nwith freestanding authority to permit home confinement of any duration.\nB.\nIt might be argued, however, that this conclusion conflicts with court\ndecisions holding that, under a prior version of the statute, BOP\xe2\x80\x99s authority under section 3621(b) included discretionary authority to order an\ninmate into prerelease custody separate from the timing provisions of\nsection 3624(c). See Rodriguez v. Smith, 541 F.3d 1180, 1184\xe2\x80\x9385 (9th\nCir. 2008); Wedelstedt v. Wiley, 477 F.3d 1160, 1166\xe2\x80\x9367 (10th Cir. 2007);\nGoldings v. Winn, 383 F.3d 17, 28\xe2\x80\x9329 (1st Cir. 2004); Elwood v. Jeter,\n386 F.3d 842, 847 (8th Cir. 2004). These decisions were contrary to an\nopinion this Office issued in 2002, which had concluded that the discretionary authority in section 3621(b) did not give BOP such authority. See\nMemorandum for Larry D. Thompson, Deputy Attorney General, from M.\nEdward Whelan III, Principal Deputy Assistant Attorney General, Office\nof Legal Counsel, Re: Bureau of Prisons Practice of Placing in Community Confinement Certain Offenders Who Have Received Sentences of\nImprisonment at 6\xe2\x80\x937 (Dec. 13, 2002) (\xe2\x80\x9cCommunity Confinement\xe2\x80\x9d).\nWe need not revisit this debate because the reasoning of these court\ndecisions has been overtaken by subsequent amendments to the statute\xe2\x80\x94\nin particular, by amendments made to the statute in the Second Chance\n\n1065 n.6 (9th Cir. 2010) (noting that the vacatur order was not appealed). BOP proposed\nan identical rule for notice and comment in 2011, see Pre-Release Community Confinement, 76 Fed. Reg. 58,197 (Sept. 20, 2011), but no final rule was promulgated.\n\n11\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nAct of 2007, Pub. L. 110-199, 122 Stat. 657 (2008). 6 These amendments\nsubstantially altered the framework for prerelease custody and for home\nconfinement. Among other things, the Act created a separate subsection\naddressing home confinement, with an independent limitation requiring\nthat this form of prerelease authority only \xe2\x80\x9cbe used to place a prisoner in\nhome confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.\xe2\x80\x9d 7 18 U.S.C. \xc2\xa7 3624(c)(2); Pub. L. 110199, \xc2\xa7 251(a), 122 Stat. at 693. By so doing, the amended statute distinguished between prerelease custody more generally, including in a \xe2\x80\x9ccommunity correctional facility,\xe2\x80\x9d and prerelease custody in \xe2\x80\x9chome confinement.\xe2\x80\x9d\nThese amendments mooted the disagreement between our 2002 Community Confinement opinion and the several circuit court decisions that\naddressed BOP\xe2\x80\x99s discretion to place prisoners in community correctional\nfacilities. In 2004, the First and Eighth Circuits reasoned that the preSecond Chance Act time limit\xe2\x80\x94\xe2\x80\x9cnot to exceed six months, of the last 10\nper centum of the term\xe2\x80\x9d\xe2\x80\x94described only the period for which BOP was\nrequired to consider the use of community corrections, not the maximum\nperiod for which it was authorized to use community corrections. Goldings, 383 F.3d at 26 (making the distinction \xe2\x80\x9cbetween a qualified obligaBetween 1990 and 2008, 18 U.S.C. \xc2\xa7 3624(c) read:\nPre-release custody.\xe2\x80\x94The Bureau of Prisons shall, to the extent practicable, assure\nthat 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\nthat will afford the prisoner a reasonable opportunity to adjust to and prepare for\nthe prisoner\xe2\x80\x99s re-entry 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\nsuch pre-release custody.\nBOP\xe2\x80\x99s current home confinement program statement continues to refer to this pre-2008\ntext of 28 U.S.C. \xc2\xa7 3624(c). See Home Confinement Program Statement at 1.\n7 We note that section 602 of the First Step Act of 2018, Pub. L. 115-391, 132 Stat.\n5194, revised 18 U.S.C. \xc2\xa7 3624(c)(2) by adding a second sentence that is not relevant\nhere: \xe2\x80\x9cThe Bureau of Prisons shall, to the extent practicable, place prisoners with lower\nrisk levels and lower needs on home confinement for the maximum amount of time\npermitted under this paragraph.\xe2\x80\x9d Id. \xc2\xa7 602, 132 Stat. at 5238. The First Step Act also\ncreated a separate home confinement program for low-risk offenders\xe2\x80\x94now codified at 18\nU.S.C. \xc2\xa7 3624(g)\xe2\x80\x94that the CARES Act does not mention and that we do not consider\nhere. Id. \xc2\xa7 102(b), 132 Stat. at 5210\xe2\x80\x9313.\n6\n\n12\n\n\x0cHome Confinement of Federal Prisoners After the COVID-19 Emergency\n\ntion imposed on the BOP and a grant of discretionary authority to it\xe2\x80\x9d);\nElwood, 386 F.3d at 847 (relying on Goldings to reach a similar conclusion). 8 Therefore, those courts held that BOP retained its discretionary\nauthority to extend prerelease custody to community correctional facilities\nbeyond the specific time window in then-section 3624(c). But the Second\nChance Act amended the statute to include in section 3624(c)(2) an express limit on any such discretionary authority as it applies to home\nconfinement: BOP \xe2\x80\x9cmay\xe2\x80\x9d (not \xe2\x80\x9cshall\xe2\x80\x9d) use home confinement \xe2\x80\x9cfor the\nshorter of 10 percent of the term of imprisonment of that prisoner or 6\nmonths.\xe2\x80\x9d\nThe Second Chance Act also distinguished prerelease custody in a\ncommunity correctional facility from home confinement. The circuit court\ndecisions involved inmates who wished to be transferred to community\ncorrectional facilities. See Goldings, 383 F.3d at 18, 28; Rodriguez, 541\nF.3d at 1181 & n.1; Wedelstedt, 477 F.3d at 1161, 1166; Elwood, 386\nF.3d at 843. In that context, these courts reasoned that \xe2\x80\x9c[a] community\ncorrection center is a correctional facility and therefore may serve as a\nprisoner\xe2\x80\x99s place of imprisonment.\xe2\x80\x9d Goldings, 383 F.3d at 28; see Elwood,\n386 F.3d at 846 (noting that a community correctional facility is a \xe2\x80\x9cpenal\nor correctional facility\xe2\x80\x9d). But prior to the Second Chance Act, it was not\nclear whether or how such reasoning extended to home confinement: the\npre-Second Chance Act version of the statute did not distinguish between\n\xe2\x80\x9chome confinement\xe2\x80\x9d and other forms of prerelease custody; all such\nauthorities were included. 9 But the Second Chance Act sets off \xe2\x80\x9chome\nThe Ninth and Tenth Circuits similarly concluded that the pre-Second Chance Act\nstatutory scheme did not cap the maximum time frame authorized for home confinement,\nfinding unlawful BOP regulations that categorically excluded prerelease custody outside\nof the section 3624 time limits. See Rodriguez, 541 F.3d at 1184\xe2\x80\x9387; Wedelstedt, 477 F.3d\nat 1166\xe2\x80\x9367.\n9 Goldings itself acknowledged, but left unresolved, the question of whether a \xe2\x80\x9chome\xe2\x80\x9d\ncould constitute a \xe2\x80\x9cpenal or correctional facility\xe2\x80\x9d and thus a \xe2\x80\x9cplace of imprisonment.\xe2\x80\x9d See\n383 F.3d at 28 (internal quotation marks omitted); see also United States v. Cintr\xc3\xb3nFern\xc3\xa1ndez, 356 F.3d 340, 346 n.6 (1st Cir. 2004) (\xe2\x80\x9c[W]e need not reach the issue of\nwhether Cintron-Fernandez\xe2\x80\x99s home could ever qualify as a \xe2\x80\x98penal or correctional facility\xe2\x80\x99\nunder 18 U.S.C. \xc2\xa7 3621(b).\xe2\x80\x9d). Prior to enactment of the Second Chance Act, however,\nseveral district courts relied on the reasoning of Goldings and Elwood to suggest that\nBOP\xe2\x80\x99s section 3621(b) authority encompassed home confinement. See, e.g., Goebel v.\nMorrison, No. 06-168-JRT-SRN, 2006 WL 1314322, at *2 (D. Minn. May 12, 2006)\n(ordering the government \xe2\x80\x9cto immediately reconsider its decision as to whether petitioner\n8\n\n13\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nconfinement\xe2\x80\x9d in a statutory subsection separate from the subsection\ngenerally authorizing prelease custody, including custody at a \xe2\x80\x9ccommunity correctional facility.\xe2\x80\x9d The decisions interpreting the earlier version of\nthe statute therefore do not undermine our conclusion that home confinement does not involve confinement at a \xe2\x80\x9cfacility\xe2\x80\x9d for purposes of section\n3621(b).\nIf BOP had general discretion to place prisoners in home confinement\nunder section 3621, then many other statutory provisions would have\nbeen unnecessary. Most notably, there would have been no need for\nCongress to carefully \xe2\x80\x9clengthen the maximum\xe2\x80\x9d home confinement time\nin the CARES Act\xe2\x80\x94surplusage that would deprive the text of meaning.\nSee United States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992) (\xe2\x80\x9c[A]\nstatute must, if possible, be construed in such fashion that every word has\nsome operative effect.\xe2\x80\x9d); Antonin Scalia & Bryan A. Garner, Reading\nLaw: The Interpretation of Legal Texts 174 (2012) (explaining the canon\nthat no word or provision \xe2\x80\x9cshould needlessly be given an interpretation\nthat causes it to . . . have no consequence\xe2\x80\x9d (citing United States v. Butler,\n297 U.S. 1, 65 (1936)). There would have been no point to Congress\nseparately addressing, and imposing time constraints on, home confinement authority through the Second Chance Act, because BOP would have\nalready possessed a home confinement discretion free from any such\nlimits under section 3621. 10 And there would have been no reason for\nCongress, in a separate prerelease custody program for low-risk offenders authorized by the First Step Act of 2018, to mention that the \xe2\x80\x9ctime\n\nshould be assigned to a Community Corrections Center or home confinement, in light of\nthe criteria set forth in 18 U.S.C. \xc2\xa7 3621(b)\xe2\x80\x9d); Young v. Caraway, No. CIV. 05-1476-JNEJJG, 2006 WL 562143, at *9 (D. Minn. Mar. 7, 2006) (finding \xe2\x80\x9cthat \xc2\xa7 3621(b) requires\nthe BOP to consider the five factors listed in the statute when deciding whether, and\nwhen, a prisoner should be assigned to a CCC or home confinement arrangement\xe2\x80\x9d). But\nfor reasons we have explained, we think that the subsequent Second Chance Act provisions eliminate that reading as a plausible interpretation of sections 3621 and 3624.\n10 In enacting the Second Chance Act of 2007, Congress created a new section\n3624(c)(2), consisting of just the first sentence of the current provision, that imposed a\ntime limit on the duration of home confinement as a form of prerelease custody. See Pub.\nL. 110-199, \xc2\xa7 251(a), 122 Stat. at 692\xe2\x80\x9393. The current second sentence of subsection\n3624(c)(2), requiring the Bureau to place lower-risk prisoners in home confinement \xe2\x80\x9cto\nthe extent practicable\xe2\x80\x9d was enacted approximately ten years later, in the First Step Act of\n2018. See Pub. L. 115-391, \xc2\xa7 602, 132 Stat. 5194, 5238.\n\n14\n\n\x0cHome Confinement of Federal Prisoners After the COVID-19 Emergency\n\nlimits\xe2\x80\x9d of section 3624(c) \xe2\x80\x9cshall not apply to prerelease custody\xe2\x80\x9d under\nthe newly created subsection 3624(g). First Step Act of 2018, Pub. L.\n115-391, \xc2\xa7 102(b), 132 Stat. 5194, 5208\xe2\x80\x9313 (quoted language codified at\n18 U.S.C. \xc2\xa7 3621(g)(10)). The Supreme Court has noted \xe2\x80\x9ctime and time\nagain\xe2\x80\x9d that it is \xe2\x80\x9cobliged to give effect, if possible, to every word Congress used.\xe2\x80\x9d Nat\xe2\x80\x99l Ass\xe2\x80\x99n of Mfrs. v. Dep\xe2\x80\x99t of Def., 138 S. Ct. 617, 632\n(2018) (internal quotation marks and citation omitted). We cannot adopt\nan interpretation of the text that would result in so much surplusage across\nso many different sections of the Code.\nIV.\nBecause the CARES Act authorizes the Director of BOP to place\nprisoners in home confinement only while the authority of section\n12003(b)(2) remains in effect, BOP must recall prisoners in home\nconfinement to correctional facilities once that authority expires, unless\nthey would otherwise be eligible for home confinement under section\n3624(c)(2). BOP\xe2\x80\x99s authority under 18 U.S.C. \xc2\xa7 3621 does not provide an\nalternative basis for authorizing continued home confinement for prisoners ineligible for home confinement under section 3624(c).\nJENNIFER L. MASCOTT\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n15\n\n\x0c'