4th Circuit Restricts FSA Credit Eligibility – Update for January 20, 2026

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4^TH CIRCUIT HANDS DOWN TROUBLING FSA CREDIT DECISION

From the 4^th Circuit last week came the first appellate decision on First Step Act credit eligibility, a 2-1 decision that is as dangerous as it is superficial.

William White is locked up until 2037, but he was actively earning FSA credits at a West Coast Bureau of Prisons facility. When he was transferred to a facility on the East Coast, Bill spent a few days in transit at FTC Oklahoma City. After arriving at his destination joint, he found that he had been denied three days of programming credit while he was at the FTC because he was in transfer status. He filed a 28 USC § 2241 petition for habeas corpus, arguing that he had been denied due process by having his incarceration unlawfully extended.

The district court denied Bill’s petition, ruling that denial of FSA time credits for the three-day transit period was consistent with the BOP’s regulations and policy statement. The district court explained that an eligible prisoner in transit (such as Bill) generally “are not ‘successfully participating’ in [recidivism reduction programs] and accordingly they are not able to accrue [FSA time credits].” Bill appealed.

Last week, the 4^th Circuit upheld the District Court’s denial of Bill’s petition . The appeals court held that

[t]he FSA provides that “[a] prisoner… who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits” based on time participating in such programming.  Because White does not claim that he participated in such programming or activities during the three days he was in transit, he cannot claim that he “earned” FSA time credits… Moreover, White’s argument that the BOP should have offered him such programming during his transfer so that he could have earned the FSA time credits cannot, even if successful, lead to a ruling awarding him such credits because he still would not have shown that he had earned them by actually participating in the programming, as required by the FSA.

The opinion is concerning for a reason that goes well beyond the lost three days. Bill contended that he should have gotten the credit because he had “opted” into FSA programming but was not actually participated in a program at that time. The BOP bases the award of FSA time credits on a prisoner’s “earning status” – that is, his or her willingness to participate in programming even if the programming has a waiting list or is just plain unavailable. The 4^th expressed skepticism that this program was consistent with the First Step Act. The Circuit observed:

Although the BOP’s program statements and practice about this approach are neither clear nor consistent, we conclude that if they reflect that the BOP awards credits for non-participation, that practice goes beyond the text of the FSA and its regulations. But more importantly, the BOP’s decision to award credits absent actual participation does not expand its statutory obligations under the FSA. The law remains clear that a prisoner’s statutory right to FSA time credits is tied to his actual participation in qualified programming. And in the absence of evidence that White participated in programming during his three-day stay at the Transfer Center, the BOP did not have a statutory obligation to award him FSA time credits for those days.

Beyond that, the 4^th concluded that the FSA time credit program does not create a protected liberty interest for prisoners, an interest which must exist in order for a prisoner to successfully maintain a § 2241 habeas corpus. The Circuit ruled that “because the text of the FSA does not create a statutory entitlement for a prisoner to earn FSA time credits, we conclude that White did not have a constitutionally protected liberty interest in earning them, and the BOP therefore did not violate his rights under the Due Process Clause in denying them to him.”

In a detailed and biting dissent, Judge Robert King complained that “under the majority’s decision, the BOP is excused, without clear limitations, from providing programming to prisoners every day; the BOP can award FSA time credits to some prisoners based on their mere “earning status,” but require actual participation of others; prisoners who claim a wrongful denial of programming can seek only future programming; and no back credits can be awarded unless a prisoner can come up with evidence of actual participation, something that, on this record, the BOP itself does not track. As such, the majority does not just flout the plain text of the FSA and the BOP’s policies and practices. Its decision also threatens chaos, unequal treatment, and other unfairness in the FSA time credit system.”

White v. Warden, Case No. 23-7116, 2026 U.S. App. LEXIS 793 (4th Cir. January 13, 2026)

~ Thomas L. Root