First Step Act Time Credits Require Actual Participation; No Due Process Liberty Interest in Earning Credits During Non-Program Periods

Case: William White v. Warden of Fed Correctional Ins - Cumberland (4th Cir. Jan. 13, 2026) (published)
Panel: Niemeyer, Wilkinson (majority); King (dissent)
Posture: Appeal from denial of 28 U.S.C. § 2241 petition seeking First Step Act (FSA) time credits for a three-day transfer-center stay.

1. Introduction

William A. White, a federal prisoner serving a 349-month sentence, was transferred in July 2022 from FCI Terre Haute (Indiana) to FCI Cumberland (Maryland). The transfer included a three-day stay at the Federal Transfer Center Oklahoma City, during which he was housed in a Special Housing Unit. White alleged that the Bureau of Prisons (BOP) did not offer him recidivism-reduction programming during those three days and therefore denied him the opportunity to earn FSA time credits.

White filed a habeas petition under 28 U.S.C. § 2241 seeking an award of FSA time credits for that period (effectively one day off his sentence), and separately argued that denying credits without due process violated the Fifth Amendment. The district court denied relief, relying on BOP regulations and agency-deference principles. The Fourth Circuit affirmed, but on a statutory-text ground that made it unnecessary to validate or apply the regulations.

Key issues:

• Statutory: Does the FSA permit awarding time credits for days when the prisoner did not participate in qualifying programming, even if the BOP allegedly failed to provide it?
• Constitutional: Does the FSA create a protected liberty interest in earning time credits such that denial triggers Fifth Amendment due process protections?
• Administrative-law context: How does the overruling of Chevron affect review of BOP interpretations?

2. Summary of the Opinion

The court held that the FSA’s text ties time credits to a prisoner’s actual “successful participation” and “successful[] complet[ion]” of qualifying programs or activities. Because White did not participate in any programming during the three days at the transfer center, he did not “earn” credits for that period under 18 U.S.C. § 3632(d)(4).

The court also rejected White’s due process claim, concluding the FSA does not create a constitutionally protected liberty interest in the opportunity to earn credits because earning and application are conditional and contingent on multiple factors. Therefore, the BOP’s denial of credits for those days did not violate the Fifth Amendment.

3. Analysis

3.1. Precedents Cited

A. Administrative-law framework (agency deference and statutory meaning)

• Chelvron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
  The district court upheld the BOP’s approach by treating the regulation as a permissible interpretation under Chevron. The Fourth Circuit noted this was overtaken by subsequent Supreme Court developments.
• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)
  Central to the Fourth Circuit’s method: after Loper Bright, courts must exercise independent judgment to determine the statute’s “single, best meaning,” though they may consider agency views as nonbinding “aid.” The panel used this to bypass the regulation’s validity and decide the case on statutory text alone.
• Skidmore v. Swift & Co., 323 U.S. 134 (1944)
  The district court invoked Skidmore to accord “respect” to a BOP policy statement. The Fourth Circuit did not need to rely on Skidmore because it found the statute unambiguous on the dispositive point: credits require participation.

B. Due process and “liberty interest” doctrine

• Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1 (1979)
  White invoked Greenholtz for the proposition that “mandatory language” limiting discretion can create a legitimate expectation and thus a protected interest. The court distinguished the FSA because the opportunity to earn credits is bounded by multiple statutory contingencies and administrative predicates.
• Cartagena v. Lovell, 103 F.4th 171 (4th Cir. 2024) (quoting Prieto v. Clarke, 780 F.3d 245 (4th Cir. 2015))
  The court used Cartagena/Prieto to state the two-step due process inquiry: identify a protected interest, then show deprivation without due process. The court resolved the case at step one—no protected liberty interest in earning FSA credits.

C. Sister-circuit consensus on FSA credits and liberty interests

• Vargas v. Rivers, No. 24-10703, 2025 WL 1380067 (5th Cir. May 13, 2025)
  Cited for the proposition that inmates have “no fundamental liberty interest” in participation or in the incentives, including time credits.
• Sedlacek v. Rardin, No. 24-1254, 2025 WL 948485 (6th Cir. Jan. 21, 2025)
  Cited for concluding FSA earned-time credits are conditional and thus do not create a protected liberty interest.
• Cheng v. United States, 132 F.4th 655 (2d Cir. 2025)
  Cited as additional appellate support rejecting a protected liberty interest theory.

D. District-court authority on inconsistent BOP practices

• Dunlap v. Warden FMC Devens, Civ. A. No. 24-11462, 2024 WL 5285006 (D. Mass. Dec. 13, 2024)
  Quoted to illustrate that even if BOP practices are inconsistent and sometimes award credits without actual participation, that does not itself create a statutory entitlement.

E. Dissent’s constitutional avoidance reference

• Ashwander v. Tenn. Valley Auth., 297 U.S. 288 (1936) (Brandeis, J., concurring)
  Invoked by the dissent to argue the case could be resolved on non-constitutional grounds and thus should not reach the due process question if statutory error sufficed to reverse.

3.2. Legal Reasoning

A. The majority’s core statutory holding: “earn” means earn

The court treated the statutory text as dispositive. Under 18 U.S.C. § 3632(d)(4)(A), a prisoner “who successfully completes” qualifying programming or activities “shall earn time credits” “for every 30 days of successful participation.” The court emphasized the statute’s active-verbs structure—“completes,” “earn,” “participation”—to conclude that credits are tied to what the prisoner actually did, not what the BOP could have offered or what the prisoner hypothetically would have done.

On the record, White did not claim he participated in any FSA programming during the three transfer-center days; therefore, he could not show he “earned” credits for that period.

B. “Failure to offer programming” is not a credits remedy in habeas

White sought credits as a retrospective substitute for programming he says the BOP should have offered, pointing to the directive that the BOP must provide opportunities to participate “throughout their entire term of incarceration,” 18 U.S.C. § 3621(h)(6). The majority accepted that the FSA broadly aims for ongoing opportunity, but rejected an interpretation requiring programming “every day,” citing practical conflict with other statutory duties (medical care, transportation, court production) and individualized programming design.

Critically, the court drew a remedial boundary: even if the BOP had wrongly failed to provide an opportunity, that would not permit a court to award credits absent actual participation because Congress defined credits as something to be earned through participation. The majority suggested a different remedy (administrative correction or an order requiring provision of programming), but not “free credits” for days without participation.

C. Agency practice cannot expand statutory entitlement

The court acknowledged White’s contention that the BOP sometimes awards credits based on “earning status” rather than actual participation, describing BOP practice as “neither clear nor consistent.” But it held that any such practice “goes beyond the text of the FSA” and cannot enlarge a prisoner’s statutory rights: the statute remains the source of entitlement, and it requires participation.

D. Waiver/forfeiture dispute

White argued the BOP waived the “actual participation” argument by litigating through regulatory exceptions in the district court. The majority rejected waiver, reasoning that the parties’ litigation always centered on whether White satisfied the statutory “participation” requirement (even if arguments were framed through regulations and policy statements), and the BOP on appeal explicitly anchored its position in the statute’s text.

E. Due process: no protected liberty interest in earning FSA time credits

Applying Cartagena/Prieto, the court held White failed at step one. Even though credits are mandatory if earned, the court stressed the contingencies in the FSA’s overall scheme: eligibility depends on risk assessment; programming access can be interrupted for practical reasons; earning depends on “successful participation” in tailored programming; credits can be withdrawn for misconduct; and application to reduce incarceration depends on additional criteria and approvals (18 U.S.C. § 3624(g)). These conditions prevent any “legitimate expectation” amounting to an entitlement.

The court aligned the Fourth Circuit with the Second, Fifth, and Sixth Circuits (Cheng, Vargas, Sedlacek) in rejecting a protected liberty interest theory for earning FSA credits.

3.3. Impact

A. Doctrinal impact on FSA time-credit litigation

• Participation is a necessary condition. In the Fourth Circuit, prisoners cannot obtain FSA time credits for periods where they did not participate in qualifying programming, even if the alleged cause is the BOP’s failure to offer programming during transfers or other short disruptions.
• Remedies are prospective rather than retroactive credits. The court’s framing pushes “failure-to-offer” disputes toward injunctive/mandamus-like relief (to provide programming) rather than sentence-credit relief.
• Due process claims face a high barrier. The holding that the FSA does not create a protected liberty interest forecloses many constitutional challenges to credit denial, shifting the battle to statutory interpretation and administrative compliance.

B. Administrative-law impact after Loper Bright

The court modeled post-Loper Bright review: rather than deferring to BOP interpretations under Chevron, it identified the “best reading” of the statute and treated the regulation/policy as unnecessary to the outcome. This approach may reduce the practical importance of program statements and certain interpretive rules when statutory text can be read as clear.

C. Operational and equity implications

The opinion creates pressure for clearer BOP accounting practices and more consistent program availability rules, because the majority simultaneously (i) requires participation for entitlement, while (ii) acknowledging allegations of inconsistent BOP practices. The dissent warns this combination risks uneven administration—particularly if prisoners cannot document participation in short or transitory placements.

4. Complex Concepts Simplified

• FSA time credits (what they are): A statutory incentive that can reduce time in custody, earned for “successful participation” in approved programs/activities. The statute frames credits as a reward for engagement, not mere passage of time.
• 28 U.S.C. § 2241 (why it matters): A habeas vehicle typically used to challenge the execution of a federal sentence (including sentence-credit calculations), rather than the validity of the conviction or sentence itself.
• Chevron vs. Loper Bright Enterprises v. Raimondo: Chevron allowed courts to defer to reasonable agency interpretations of ambiguous statutes. Loper Bright overruled Chevron and requires courts to determine the statute’s best meaning independently, though agency views may still be considered as persuasive authority.
• Skidmore v. Swift & Co. “respect”: Even without binding deference, an agency interpretation can be persuasive depending on its thoroughness and logic; it is not controlling.
• Liberty interest (due process): Due process protections attach only if a statute/regulation creates an entitlement—i.e., more than a hope or unilateral expectation. The court held FSA credits are too conditional to constitute such an entitlement at the earning stage.
• Waiver/forfeiture (appellate practice): Arguments not properly preserved below are often unavailable on appeal. The majority found no waiver of the statutory “participation” point; the dissent found the government waived the majority’s new theory.

5. Conclusion

The Fourth Circuit’s published decision establishes two practical rules for FSA time-credit disputes in the circuit: (1) FSA time credits cannot be awarded for days when the prisoner did not actually participate in qualifying programming, even if the prisoner claims the BOP failed to offer programming during a short transfer-center stay; and (2) the FSA does not create a constitutionally protected liberty interest in earning time credits, given the statute’s layered contingencies.

In a post-Chevron landscape shaped by Loper Bright Enterprises v. Raimondo, the opinion exemplifies a text-first approach: the statutory verbs “successfully completes” and “successful participation” do the dispositive work, leaving regulations and program statements secondary. The dissent, however, flags real-world administrative friction—factual uncertainty about program availability and the BOP’s “earning status” practices—that may reemerge in future litigation over how the FSA operates on the ground.