Bains v. Quay

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SUKHJIT BAINS,

Petitioner, CIVIL ACTION NO. 3:21-cv-00353

v. (KANE, J.)

(SAPORITO, M.J.)

HERMAN QUAY, Warden of

Allenwood Low Security Federal

Correctional Institution,

Respondent.

REPORT AND RECOMMENDATION

On February 26, 2021, the petitioner, appearing through counsel,

filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.

(Doc. 1.) At the time of filing, Bains was incarcerated at FCI Allenwood

Low, a federal prison located in Union County, Pennsylvania.

I. BACKGROUND

Bains is a federal inmate serving a 63-month prison sentence for

possession with intent to distribute methamphetamine and possession of

a firearm and ammunition by a convicted felon. He is currently expected

to complete his active prison term on May 26, 2022—a date which

includes the application of 283 days of earned and projected good conduct

time credit. His sentence also includes a three-year period of supervised

release, which will commence upon his release from active incarceration.

On December 21, 2018, the First Step Act (“FSA”) of 2018 was

signed into law. Among other provisions, the FSA sought to incentivize

federal inmates to participate in programs that had been demonstrated

to reduce recidivism. It directed the BOP to develop and implement a risk

and needs assessment system to assess the recidivism risk and

criminogenic needs of all federal prisoners, and to place prisoners in

recidivism reducing programs and productive activities to address their

needs and reduce this risk of recidivism. The FSA required the risk and

needs assessment system to be developed by July 19, 2019—210 days

after enactment. See 18 U.S.C. § 3632(a). It required the BOP to complete

screening of all prisoners and to begin assigning them to programming

by January 15, 2020—180 days after the deadline for developing the risk

and needs assessment system. See id. § 3621(h)(1). The BOP was given a

two-year period—ending January 15, 2022—to phase in the entire

program for all prisoners. See id. § 3621(h)(2). During this phase-in

period, the BOP was instructed to provide priority to inmates based on

the proximity of their release dates. See id. § 3621(h)(3).

Under the FSA, the BOP is required to provide incentives to

prisoners who participate in and complete evidence-based recidivism

reduction programs (“EBRR”),1 including phone and visitation privileges,

transfer to a prison closer to home, and other rewards. See id. § 3632(d).

In addition, the FSA requires the BOP to provide time credits (“FSA time

credits”)2 to eligible prisoners who successfully complete EBRR or

productive activities (“PA”).3 See id. § 3632(d)(4). In relevant part, the

1 The FSA defined “evidence-based recidivism reduction program”

as activities that have been shown by empirical evidence to reduce

recidivism or are based on research indicating that they are likely to be

effective in reducing recidivism, and that are designed to help prisoners

succeed in their communities upon release. See 18 U.S.C. § 3635(3). The

BOP has identified several programs that meet these criteria, including

the residential drug abuse program and federal prison industry program

in which this petitioner participated.

2 The statute simply uses the term “time credits.” In their briefs,

the parties have referred to these time credits as “earned time credits” or

“special time credits.” In its proposed rules to codify procedures regarding

these time credits, the BOP has dubbed them “FSA time credits.” See FSA

Time Credits, 85 Fed. Reg. 75,268 (proposed Nov. 25, 2020) (to be codified

at 28 C.F.R. pts. 523 and 541). For the sake of clarity, we have generally

adopted this label, “FSA time credits,” to distinguish them from other

sorts of “time credits” awarded in the federal prison system. See, e.g., 28

C.F.R. § 523.1 et seq. (addressing “good time credits” and “extra good time

credits” awarded to prisoners sentenced for offenses committed before

November 1, 1987); id. § 523.20 (addressing “good conduct time credits”

awarded pursuant to 18 U.S.C. § 3624(b)).

3 The FSA defined “productive activities” as “either a group or

individual activity that is designed to allow prisoners determined as

having a minimum or low risk of recidivating to remain productive and

thereby maintain a minimum or low risk of recidivating.” See 18 U.S.C.

(continued on next page)

statute provides that an eligible4 prisoner:

who successfully completes evidence-based recidivism

reduction programming or productive activities, shall

earn [FSA] time credits as follows:

(i) A prisoner shall earn 10 days of [FSA] time

credits for every 30 days of successful participation

in evidence-based recidivism reduction

programming or productive activities.

(ii) A prisoner determined by the Bureau of

Prisons to be at a minimum or low risk of

recidivating, who, over 2 consecutive assessments,

has not increased their risk of recidivism, shall

earn an additional 5 days of [FSA] time credits for

every 30 days of successful participation in

evidence-based recidivism reduction programming

or productive activities.

18 U.S.C. § 3632(d)(4)(A).

In his two most recent assessments, Bains was found to be FSA

eligible, and he was assessed at a low risk of recidivating. Thus, he falls

within the category of FSA-eligible prisoners who earn 15 days of FSA

time credits for every 30 days of successful participation in EBRR or PA.

Ordinarily—that is, independent of any earned FSA time credits—

§ 3635(5). The BOP has identified several activities that meet these

criteria, including several education courses in which this petitioner

participated.

4 The statute provides that prisoners serving sentences for various

enumerated offenses are not eligible to receive FSA time credits under

this statute. It is undisputed, however, that the petitioner is FSA eligible.

the BOP is authorized, in its discretion,5 to assign a prisoner to serve the

final months of his or her prison term, not to exceed twelve months, in

“prerelease custody,” where the prisoner is afforded re-entry

programming to help him or her successfully transition back into the

community. See 18 U.S.C. § 3624(c); 28 C.F.R. § 570.21. A prisoner may

be designated to serve up to twelve months of prerelease custody in a

residential re-entry center (“RRC”)—also known commonly as a “halfway

house.” See 18 U.S.C. § 3624(c)(1); 28 C.F.R. § 570.21(a). Moreover, the

prisoner may be designated to serve up to six months6 of that prerelease

custody in home confinement.7 See 18 U.S.C. § 3624(c)(2); 28 C.F.R.

§ 570.21(b). Under this statutory and regulatory scheme, Bains was

eligible for prerelease custody in an RRC as of May 26, 2020, and he is

eligible for prerelease custody in home confinement as of November 26,

5 See Vasquez v. Strada, 684 F.3d 431, 434 (3d Cir. 2012) (per

curiam) (prerelease custody); see also United States v. Jefferson, No. 21-

2020, 2021 WL 4279626, at *3 (3d Cir. Sept. 21, 2021) (per curiam) (home

confinement).

6 Home confinement is limited to the shorter of ten percent of the

prisoner’s term of imprisonment or six months. See 18 U.S.C.

§ 3624(c)(2); 28 C.F.R. § 570.21(b). Here, the petitioner was sentenced to

serve a 63-month term of imprisonment, so the six-month limit applies.

7 We note that “[t]his 6 months of home confinement is not

additional to the 12 months of prerelease custody.” Guess v. Werlinger,

421 Fed. App’x 215, 217 (3d Cir. 2011) (per curiam) (emphasis added).

2021.

The enactment of the FSA has overlaid an alternative basis for a

prisoner to be designated to prerelease custody.8 Under the FSA, a

prisoner is entitled to immediate placement in prerelease custody (either

in an RRC or in home confinement) when he has earned FSA time credits

in an amount equal to the remainder of his imposed prison term, provided

he or she has been found to pose a minimum or low recidivism risk in his

or her last two assessments. See 18 U.S.C. § 3632(d)(4)(C) (providing that

FSA time credits “shall be applied toward time in prerelease custody or

supervised release”) (emphasis added); id. § 3624(g)(2) (providing that a

prisoner eligible for prerelease custody based on FSA time credits “shall

be placed in prerelease custody”) (emphasis added); id.

8 We note that the BOP also appears to have the discretion to

designate a prisoner to serve his term in an RRC setting at any time,

though this would not constitute “prerelease custody,” strictly speaking.

See 18 U.S.C. § 3121(b) (granting the BOP unfettered discretion to

designate the place of a prisoner’s imprisonment, including placement in

a community correctional facility); Rodriguez v. Smith, 541 F.3d 1180,

1183 (9th Cir. 2008) (noting that the BOP had recognized its discretion

under § 3121(b) to transfer an inmate to an RRC at any time); Woodall v.

Fed. Bureau of Prisons, 432 F.3d 235, 250 (3d Cir. 2005) (recognizing the

BOP’s discretionary authority to place a prisoner in an RRC at any time,

including prior to the date when it is required to consider such placement

by § 3624(c)).

§ 3624(g)(1)(D)(i)(I) (providing that a prisoner may be eligible for

prerelease custody based on FSA time credits if he has been determined

to be a minimum or low risk to recidivate in the last two reassessments).9

Moreover, the time limits imposed by § 3624(c) do not apply to limit this

non-discretionary period of prerelease custody based on FSA time credits.

See id. § 3624(g)(10).10 The parties have disputed calculation of the FSA

time credits Bains has earned toward prerelease custody, but he is

otherwise eligible for mandatory prerelease custody, either to an RRC or

to home confinement, under these statutory provisions.

In addition, the FSA has provided an opportunity for a prisoner to

obtain an early transfer to supervised release. Under the FSA, a prisoner

is eligible to be released from confinement and to commence his or her

term of supervised release up to twelve months early, at the discretion of

the BOP, provided he or she has been found to pose a minimum or low

9 The statute also permits prisoners who do not satisfy this

requirement to petition the warden for discretionary approval. See 18

U.S.C. § 3624(g)(1)(D)(i)(II).

10 So, in theory at least, a prisoner may accumulate sufficient FSA

time credits to trigger mandatory prerelease custody to home

confinement or an RRC before he or she would be eligible for such

placement under § 3624(c)—six or twelve months prior to expiration of

his or her active prison sentence, respectively.

recidivism risk in his or her last assessment. See id. § 3624(g)(3)

(providing that the BOP “may transfer [an eligible prisoner sentenced to

serve a term of supervised release after imprisonment] to begin any such

term of supervised release at an earlier date, not to exceed 12 months,

based on the application of [FSA] time credits”) (emphasis added); id.

§ 3624(g)(1)(D)(ii) (providing that a prisoner may be eligible for early

placement on supervised release based on FSA time credits if determined

to be a minimum or low risk to recidivate in his or her last reassessment).

As we have noted above, the parties have disputed calculation of the FSA

time credits Bains has earned toward early supervised release, but he is

otherwise eligible to be considered for early supervised release under

these statutory provisions.

The parties dispute calculation of the petitioner’s FSA time credits.

Bains claims to have accrued more than 400 days of FSA time credits,

which would have entitled him to an immediate transfer to prerelease

custody in October 2020. The BOP, on the other hand, claims that Bains

has accrued approximately 60 days of FSA time credits, and thus he is

not eligible for prerelease custody under the FSA until March 2022.

II. DISCUSSION

Bains entered into BOP custody and began serving his active prison

sentence on January 16, 2019, shortly after the FSA was enacted. While

incarcerated, Bains was employed with UNICOR full-time for three

separate periods: (1) March 7, 2019, through October 16, 2019, while at

FCI Terre Haute; (2) November 9, 2019, through January 6, 2020, while

at FCI Allenwood; and (3) November 9, 2020, through January 19, 2021,

while at FCI Allenwood.11 Bains participated in and successfully

completed RDAP on October 20, 2020. Bains also completed several

educational and vocational programs: ACE12 Customer Service Class,

completed on February 14, 2019; ACE Introduction to Carpentry, ACE

Food Safety Class, ACE Health Is Everywhere, ACE Introduction to

Spanish, ACE Journalism Class, ACE Marketing Class, ACE Nutrition

& Science Research, ACE Resume & Cover Letter, and ACE Stonesoup:

11 It is undisputed that Bains “successfully completed” these work

assignments. His first assignment appears to have ended because he was

transferred to a new facility. His second assignment ended because he

was enrolled in RDAP. His third, post-RDAP assignment ended when all

work programs were suspended due to COVID.

12 “ACE” appears to mean “adult continuing education.” See

generally BOP Program Statement No. 5300.21, Education, Training and

Leisure Time Standards, at 6 (Feb. 18, 2002).

Start a Business, all completed on February 28, 2019; ACE Basic Math:

Decimals, ACE Electrical Trade, ACE The Plumbing Profession, and

ACE Sociology Class, all completed on May 9, 2019; VT Computer Apps,

completed on July 12, 2019; and RHU Our Solar System, RHU Email

Basics, RHU Checkbook Math, and RHU ASVAB Career Exploration, all

completed on April 6, 2021. Bains also completed a recreation program:

Exercise Physiology, completed on November 18, 2019.13 Finally, Bains

completed three BOP-designated PAs: Money SMART for Older Adults,

Women in the 21st Century Workplace, and AARP Foundation Finances

50+, all completed on November 13, 2020.

Under the FSA, the petitioner has earned some number of FSA time

credits for successful completion of the foregoing programming, but the

parties dispute the amount of FSA time credit the petitioner has earned.

This dispute with respect to computation of the petitioner’s FSA time

credits boils down to two discrete issues. First, the parties disagree on

when the FSA authorizes an inmate’s programming to be considered for

the purpose of accruing FSA time credits—the petitioner argues that all

13 See generally BOP Program Statement 5370.11, Recreation

Programs, Inmate, at 9 (June 25, 2008).

programming completed on or after the FSA’s enactment on December

21, 2018, should be counted, while the respondent argues that only

programming completed on or after January 15, 2020, should be counted.

Second, the parties disagree on the amount of credit an inmate may earn

for certain programming activities—the BOP has capped long-term and

variable-hour activities such as its residential drug abuse program

(“RDAP”) and federal prison industries work (commonly known by its

trade name, “UNICOR”) at 500 hours each, while the petitioner argues

that the opportunity to earn FSA time credits for such EBRR

programming should not be capped.14 The outcome on each of these issues

14 Two other issues bear mentioning. First, the respondent

references a proposed regulation providing that eligible inmates may

only earn FSA time credits for EBRR or PA that are assigned to the

inmate by BOP staff based on the inmate’s risk and needs assessment.

(See Doc. 18, at 11–12.) The petitioner disputes the applicability of this

requirement, but he nonetheless contends that all of the programming at

issue was either assigned or approved by BOP staff. The BOP has not

responded to this particular contention, and based on our other legal

conclusions, this point of dispute is moot. Second, the respondent

suggests, in a margin note, that the petitioner’s habeas claims are unripe

because, based on the BOP’s less generous calculation of FSA time

credits, the petitioner is not eligible for prerelease custody or early

transfer to supervised release until March 2022, at the earliest, and thus

his petition is premature. (See id. at 15 n.4.) But it is well established

that habeas corpus relief is not limited to immediate release from

unlawful custody; the writ is available also to obtain a future release,

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hinges on the preliminary issue of the level of deference this court should

give to the BOP’s interpretation of the FSA, as expressed in proposed

regulations it has promulgated.

A. Earliest Date When FSA Time Credits Could Be Earned

Based on the language of the FSA, the petitioner contends that he

is entitled to FSA time credits for his successful completion of EBRR and

PA programs after December 21, 2018—the date when the FSA was

enacted. The BOP, on the other hand, has advanced a contrary position

in proposed rules issued on November 25, 2020. See FSA Time Credits,

85 Fed. Reg. 75,268 (proposed Nov. 25, 2020) (to be codified at 28 C.F.R.

shortening the length of the petitioner’s actual confinement in prison. See

Preiser v. Rodriguez, 411 U.S. 475, 487 (1973). “The function of the

ripeness doctrine is to determine whether a party has brought an action

prematurely, and counsels abstention until such time as a dispute is

sufficiently concrete to satisfy the constitutional and prudential

requirements of the doctrine.” Peachlum v. City of York, 333 F.3d 429,

433 (3d Cir. 2003) (citation omitted). “A claim is not ripe for adjudication

if it rests upon contingent future events that may not occur as

anticipated, or indeed may not occur at all.” Texas v. U.S., 523 U.S. 296,

300 (1998) (internal quotation marks omitted). Here, however, the

petitioner’s claim for relief does not rest on some contingent future event,

but on the BOP’s treatment, for FSA time credit purposes, of EBRR and

PA programs he has already completed in the past. Moreover, under the

petitioner’s construction of the FSA, he has already earned sufficient FSA

time credits to mandate his immediate release from prison to the less-

restrictive conditions of prerelease custody. Thus, his habeas claim is

clearly ripe for adjudication.

pts. 523 and 541). Under one of these proposed rules, an inmate may only

earn FSA time credits for programs completed on or after January 15,

2020. Id. at 75,272 (to be codified at 28 C.F.R. § 523.42(d)(1)). Thus, we

must determine whether this particular interpretation of the statute by

BOP is entitled to Chevron deference. See Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984); see also Ramos-

Sanchez v. Warden FCC Allenwood, Civil No. 1:21-CV-00009, 2021 WL

3115204, at *2 (M.D. Pa. July 22, 2021) (applying Chevron deference to

the very same BOP proposed rule involved here); AARP v. Equal Emp’t

Opportunity Comm’n, 390 F. Supp. 2d 437, 455–57 (E.D. Pa. 2005)

(applying Chevron deference to proposed regulations); Johnson v. Reserve

Life Ins. Co., 765 F. Supp. 1478, 1480–83 (C.D. Cal. 1991) (applying

Chevron deference to proposed regulation); cf. United States v. Morton,

467 U.S. 822, 835 & n.21 (1984) (affording deference to an agency’s

statutory interpretation where regulation was proposed after suit was

brought); Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d

1210, 1219 (11th Cir. 2009) (affording Chevron deference to regulation

proposed after lawsuit began). But see Lee v. Lynch, 791 F.3d 1261, 1265

n.3 (10th Cir. 2015) (categorically declining to consider affording Chevron

deference to a proposed regulation that had never been adopted, with

respect to proceedings that took place seven years after the rule had been

proposed); see also Thiam v. Holder, 677 F.3d 299, 302 (6th Cir. 2012)

(noting that the proposed regulation at issue in Lee was never finally

promulgated).15

15 In his reply, the petitioner argues that, as proposed regulations,

the BOP’s FSA Time Credits rules are entitled to no deference, quoting a

Supreme Court decision in which the Court commented that “a proposed

regulation does not represent an agency’s considered interpretation of its

statute.” (Doc. 21, at 8 (quoting Commodity Futures Trading Comm’n v.

Schor, 478 U.S. 833, 845 (1986)).) But the Schor decision is entirely

inapposite to the present circumstances. In Schor, the respondent had

argued that a federal agency’s longstanding interpretation of a statute

that it had been entrusted to administer, embodied in a final rule that

had never been rescinded, was not entitled to Chevron deference because

the agency had at one time considered a proposed regulation advancing

an alternative interpretation of the statute. See Schor, 478 U.S. at 845.

In response to public comment, the agency reconsidered the proposed rule

and never adopted it. See id. The Supreme Court rejected the

respondent’s argument and afforded Chevron deference to the preexisting

agency regulation. See id.; see also Santomenno ex rel. John Hancock Tr.

v. John Hancock Life Ins. Co. (U.S.A.), 768 F.3d 284, 298 (3d Cir. 2014)

(rejecting similar argument and affording Chevron deference to existing

agency regulation interpreting statute, notwithstanding different

interpretation in proposed regulation that was never adopted). The

quoted language from the Schor decision says nothing whatsoever, either

way, about whether an agency’s proposed regulation interpreting a

statute it has been entrusted to administer is entitled to Chevron

deference. It stands only for the proposition that a proposed regulation

that is ultimately not adopted does not negate the deference owed to an

agency interpretation embodied in a previously adopted regulation that

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In determining whether an agency interpretation is entitled to

Chevron deference, a court must conduct a two-step analysis. See

Chevron, 467 U.S. at 842. First, we must determine “whether Congress

has directly spoken to the precise question at issue” in the language of

remains in effect. As other federal courts have recognized, “sometimes

[even] informal agency actions are entitled to Chevron deference.”

Tippins v. United States, 154 Fed. Cl. 373, 383 (Fed. Cl. 2021); see also

Sinclair Wyoming Refining Co. v. U.S. Envtl. Prot. Agency, 887 F.3d 986,

991 (10th Cir. 2017) (noting that Chevron deference is generally

appropriate for agency interpretations produced by informal notice-and-

comment rulemaking); Krzalic v. Republic Title Co., 314 F.3d 875, 879

(7th Cir. 2002) (“[L]egislative rules and formal adjudications are always

entitled to Chevron deference . . . .”); Pennsylvania v. DeJoy, 490 F. Supp.

3d 833, 879 n.41 (E.D. Pa. 2020) (noting that “some agency

interpretations that do not have the force of law may at times still be

entitled to Chevron deference”). Thus, although the notice-and-comment

rulemaking process here has not yet reached its terminus with the

adoption of a final rule, the BOP’s proposed rules on FSA Time Credits

fit within the category of interpretations that may be properly afforded

Chevron deference.

The petitioner also cites a Second Circuit decision, Sweet v.

Sheahan, 235 F.3d 80 (2d Cir. 2000), characterizing it as categorically

refusing to apply Chevron deference to proposed regulations. (See Doc.

21, at 11–12.) But the Sweet court found the final regulations ultimately

adopted were entitled to Chevron deference, including a provision in the

final regulations setting a different and later effective date for disclosure

obligations than had been stated in the proposed regulation that

preceded notice-and-comment and promulgation of the final regulations.

See Sweet, 235 F.3d at 85 & n.4. The Sweet court further discussed the

law’s strong presumption against retroactive application of regulations.

See id. at 88–90. Nowhere did the Sweet court suggest that a proposed

rule could never be afforded Chevron deference.

the statute. Id. “If the intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Id. at 842–43. But “if the

statute is silent or ambiguous with respect to the specific issue, the

question for the court is whether the agency’s answer is based on a

permissible construction of the statute.” Id. at 843. The court must defer

to the agency’s interpretation if it is a reasonable and permissive reading

of the statute. Id. at 843–45.

The FSA provides that “[a] prisoner may not earn [FSA] time

credits . . . for an evidence-based recidivism reduction program that the

prisoner successfully completed . . . prior to the date of enactment of [the

FSA].” 18 U.S.C. § 3632(d)(4)(B). The statute was enacted on December

21, 2018. The petitioner argues that the language of the statute therefore

allows him to earn FSA time credits for any programs he completed after

December 21, 2018—that is, all of the programming he has completed

during his period of incarceration.

Although the statute unambiguously establishes that FSA time

credits may not be earned prior to December 21, 2018, it is silent with

respect to the effective date on which FSA time credits may be earned,

thus we find that Congress has not directly spoken to the precise question

at issue.16 See Ramos-Sanchez, 2021 WL 3115204, at *3; see also Chevron,

467 U.S. at 842. Therefore, because the statute is silent with respect to

this precise question before the court, we must determine whether the

BOP’s attempt to fill this gap is reasonable and permissible in light of the

statute’s language. See Ramos-Sanchez, 2021 WL 3115204, at *3; see also

Chevron, 467 U.S. at 843.

The BOP’s proposed rule provides that an inmate may only earn

FSA time credits for programs completed on or after January 15, 2020.

FSA Time Credits, 85 Fed. Reg. at 75,272. As this court previously

explained, prior to promulgation of the proposed rule:

[T]hese programs did not go into effect immediately. The

16 On this point, the petitioner has argued that the BOP’s proposed

rules are contrary to the unambiguous intent of the legislature in

enacting the FSA, relying heavily on the statute’s legislative history and

on a letter from two U.S. senators to the Attorney General requesting

revisions to the proposed rule and purportedly expressing the legislative

intent behind the express language of the statute. But it is well

established that such extrinsic evidence of legislative intent may not be

considered at step one of the Chevron analysis. See United States v.

Geiser, 527 F.3d 288, 294 (3d Cir. 2008). Rather, we must “determine

whether Congress has unambiguously expressed its intent by looking at

the plain and literal language of the statute.” Id. (citations, brackets, and

internal quotation marks omitted); see also Szehinskyj v. Attorney Gen.

of U.S., 432 F.3d 253, 256 (3d Cir. 2005) (“The law is what Congress

enacts, not what its members say on the floor.”).

Attorney General was allowed 210 days after the First

Step Act was enacted, on December 21, 2018, to develop

and publish the Risk and Needs Assessment System,

which the BOP was to use as a guide to implement the

programs. The Attorney General published the Risk and

Needs Assessment System on July 19, 2019. The BOP

then had 180 days, or until January 15, 2020, to

implement the system, complete inmate assessments,

and then begin to assign prisoners to appropriate

evidence-based recidivism reduction programs.

Kurti v. White, Civil No. 1:19-cv-2109, 2020 WL 2063871, at *4 (M.D. Pa.

Apr. 29, 2020) (citations and footnote omitted). Thus, we concluded in

Kurti that programming completed by an inmate prior to the January 15,

2020, implementation of the FSA is not eligible for FSA time credit. See

id. at *5. Based on this same reasoning, we later considered the proposed

rule at issue and found it to be a reasonable and permissible reading of

the statute, which is therefore entitled to Chevron deference. See Ramos-

Sanchez, 2021 WL 3115204, at *3; accord Delahoz v. Spaulding, No. 1:21-

cv-01204, 2021 WL 384350, at *4 (M.D. Pa. Aug. 31, 2021) (“[I]nmates

cannot earn [FSA] time credits for EBRRs and PAs completed before

January 15, 2020.”); Rehfuss v. Spaulding, No. 1:21-cv-00677, 2021 WL

2660869, at *4 (M.D. Pa. June 29, 2021) (same).

Accordingly, the petitioner may only earn FSA time credits based

on EBRR or PA programming completed on or after January 15, 2020.

Much of the programming Bains relies on here was completed before this

date, and thus it is not eligible for FSA time credit. What remains, then,

are: (1) the petitioner’s most recent stint of UNICOR employment from

November 9, 2020, through January 19, 2021; (2) his completion of the

RDAP program on October 20, 2020; (3) his completion of three PA

programs17 on November 13, 2020; and (4) his completion of four

independent-study RHU educational programs18 on April 6, 2021.

B. UNICOR Work Assignment

UNICOR work assignment is one of the numerous BOP-approved

EBRR programs made available to FSA-eligible inmates. (See Doc. 1-5,

at 3; Doc. 18-2, at 28; Doc. 34-2, at 54.)19 The petitioner’s risk and needs

17 Money SMART for Older Adults, Women in the 21st Century

Workplace, and AARP Foundation Finances 50+.

18 RHU Our Solar System, RHU Email Basics, RHU Checkbook

Math, and RHU ASVAB Career Exploration.

19 As the BOP has progressed in its implementation of the FSA, it

has promulgated successive iterations of a guide listing approved EBRR

and PA programs. Together with his petition, the petitioner submitted a

copy of what appears to be an undated, early version of this guide, titled

“Evidence-based Recidivism Reduction (EBRR) Programs and Productive

Activities (PA).” (Doc. 1-5.) In support of his response to the petition, the

respondent submitted a copy of a February 2021 version of the guide,

titled “First Step Act: Approved Programs Guide.” (Doc. 18-2, at 15–60.)

In response to our recent order expanding the record (Doc. 32), the

respondent submitted a copy of a July 2021 version of the guide, titled

“First Step Act: Approved Programs Guide.” (Doc. 34-2, at 39–87.)

assessment includes a criminogenic need of Work. (Doc. 34-2, at 37.)

Bains completed a full-time work assignment with UNICOR, which

began on November 9, 2020, and ended on January 19, 2021, at which

time all prison work programs were suspended due to the COVID-19

pandemic. (Doc. 33, at 2.) During this period of ten weeks and two days,

Bains worked eight hours per day, five days per week. There is no

evidence in the record before us, nor any representation by counsel, to

suggest that Bains missed any of his regularly scheduled workdays or

worked any additional overtime days during this period. Based on this

information, the petitioner performed no more than 416 hours of work for

UNICOR after January 15, 2020, and thus the 500-hour “cap” is not at

issue with respect to this EBRR program activity. Nevertheless, the

parties do not dispute that Bains “successfully completed” his work

assignment, which was cut short only due to restrictions imposed as a

result of the COVID-19 pandemic. Accordingly, we find that the

petitioner has accrued 500 hours of EBRR program credit based on his

UNICOR work assignment, equivalent to 62½ days.20

20 The FSA itself describes the computation of FSA time credits in

terms of days rather than the hours in which the BOP has measured

(continued on next page)

C. RDAP Completion

RDAP is one of the numerous BOP-approved EBRR programs made

available to FSA-eligible inmates. (See Doc. 1-5, at 3; Doc. 18-2, at 38;

Doc. 34-2, at 64.) The petitioner’s risk and needs assessment includes a

criminogenic need of Substance Abuse. (Doc. 34-2, at 37.)

Bains participated in and successfully completed the RDAP

program between January 7, 2020, and October 20, 2020. (Doc. 1 ¶ 18.)21

The parties dispute the calculation of the amount of EBRR programming

EBRR and PA programming. The BOP’s proposed rules expressly provide

that: “For purposes of earning FSA Time Credits, a ‘day’ is defined as one

eight-hour period of participation in an Evidence-Based Recidivism

Reduction program or Productive Activity that an eligible inmate

successfully completes.” FSA Time Credits, 85 Fed. Reg. at 75,272 (to be

codified at 28 C.F.R. § 523.42(b)). The respondent advances this same

interpretation of the statute in this case. The petitioner has expressly

declined to contest the respondent’s argument on this point. (Doc. 21, at

15 n.5.) Because the petitioner has expressly conceded the point, we may

adopt the respondent’s construction of the statute with respect to the

definition of “day” for FSA time credit computation purposes as our own.

But we also note our agreement with the reasoning of our sister court in

Hare v. Ortiz, Civ. No. 20-14093 (RMB), 2021 WL 391280 (D.N.J. Feb. 4,

2021), which reached the same conclusion in a contested matter. See id.

at *11–*12 (affording Chevron deference to the BOP interpretation of the

term “day” as used in the FSA).

21 We note that BOP records indicate that Bains began his

participation in RDAP on December 20, 2019, nineteen days earlier than

the petition alleges. (See Doc. 34-2, at 33.) In light of our conclusion below

with respect to the 500-hour cap on EBRR credit, however, the date when

Bains began his participation in RDAP is immaterial.

time with which he is credited for this program. The petitioner contends

that, as a residential program, the petitioner should be credited with 288

days of EBRR program participation, reflecting the entire period of his

participation as measured in calendar days. The respondent, however,

contends that completion of RDAP results in an award of only 500 hours

of EBRR program credit.

The FSA expressly delegated authority to the BOP to determine

“the type, amount, and intensity of [EBRR] programming and [PA] that

shall be assigned for each prisoner.” See 18 U.S.C. § 3632(b). It further

provided that EBRR programming “may include . . . substance abuse

treatment.” Id. § 3635(3)(C)(vii) (emphasis added). In compiling its list of

approved EBRR programming, the BOP has included RDAP as an

approved EBRR program for which it will award 500 hours of EBRR

programming hours upon completion. (See Doc. 1-5, at 3; Doc. 18-2, at 38;

Doc. 34-2, at 64.) Although the RDAP program may be conducted over a

period of nine to twelve calendar months, BOP policies provide that the

standard RDAP treatment program “consists of a minimum of 500

contact hours; i.e., face to face contact between treatment staff and

inmate participants, over no less than 9 months of half-day

programming,” which occurs daily, excluding weekends and holidays.

BOP Program Statement No. 5330.11, Psychology Treatment Programs,

sec. 2.5.10 (Mar. 16, 2009).22

Here, the BOP’s FSA-approved programs guide and its psychology

treatment program statement are not published rules or regulations

entitled to Chevron deference, but only interpretive rules that do not

require notice and comment. Nevertheless, they are entitled to “some

deference” so long as each sets forth a permissible construction of the

statutes the BOP is charged with administering. See Reno v. Koray, 515

U.S. 50, 60–61 (1995); Blood v. Bledsoe, 648 F.3d 203, 208 (3d Cir. 2011).

In light of the BOP’s standard requirement that an RDAP program

consists of 500 hours of face-to-face treatment programming, we find its

concomitant determination that successful completion of RDAP should

result in an award of 500 hours of EBRR program credit to be a

reasonable and permissible construction of the FSA.

Based on the foregoing, the petitioner has accrued 500 hours of

22 The court may properly take judicial notice of a BOP program

statement. United States v. Tidzump, 841 F.3d 844, 845 & n.1 (10th Cir.

2016); Davila v. Gladden, 777 F.3d 1198, 1207 n.3 (11th Cir. 2015);

United States v. Thornton, 511 F.3d 1221, 1229 n.5 (9th Cir. 2008);

Antonelli v. Ralston, 609 F.2d 340, 341 n.1 (8th Cir. 1979).

EBRR program credit based on his successful completion of RDAP,

equivalent to 62½ days.23

D. Productive Activities

Bains has completed three of the BOP-approved PA programs:

Money SMART for Older Adults, Women in the 21st Century Workplace,

and AARP Foundation Finances 50+. (See Doc. 1-5, at 5, 6, 7; Doc. 18-2,

at 47, 53, 56; Doc. 34-2, at 74, 80, 83.) The petitioner’s risk and needs

assessment includes criminogenic needs of Finance/Poverty and Work.24

(Doc. 34-2, at 37.)

The BOP’s FSA-approved programs guide provides that successful

completion of the AARP Foundation Finances 50+ program results in an

award of 5 hours of PA program credit, successful completion of the

Money SMART for Older Adults program results in an award of 28 hours

of PA program credit, and successful completion of the Women in the 21st

Century Workplace program results in an award of 10 hours of PA

program credit. The BOP appears to have based its determinations with

23 See supra note 20.

24 We note that a criminogenic need of Finance/Poverty was

removed by an update to the petitioner’s risk and needs assessment on

May 28, 2021. At the time when he completed these PAs, however, Bains

had an active Finance/Poverty need on his record.

respect to the number of hours to award for PA program credit purposes

on the amount of actual instruction time provided by each of these FSA-

accredited programs. For the same reasons given with respect to the

BOP’s determination that successful completion RDAP should result in

an award of 500 hours of EBRR program credit, we find its determination

with respect to PA program credit awarded for successful completion of

each of these three PA programs to be a reasonable and permissible

construction of the FSA.

Based on the foregoing, the petitioner has accrued 43 hours of PA

program credit based on his successful completion of Money SMART for

Older Adults, Women in the 21st Century Workplace, and AARP

Foundation Finances 50+, equivalent to 5⅜ days.25

E. Independent-Study Coursework

Bains has also recently completed four independent-study courses:

RHU Our Solar System; RHU Email Basics; RHU Checkbook Math; and

RHU ASVAB Career Exploration.26 (Doc. 34-2, at 31, 38.) While each of

these self-study courses was affirmatively assigned to the petitioner by

25 See supra note 20.

26 Each program appears to involve the completion of a 3-hour

course of self-guided instruction. (See Doc. 34-2, at 38.)

BOP staff (see id. at 27), none is among the EBRR or PA programs listed

in the BOP’s FSA-approved programs guide. (See Doc. 1-5; Doc. 18-2, at

15–60; Doc. 34-2, at 39–87.) Thus, Bains has accrued no EBRR or PA

program credit based on his completion of these educational courses that

are not approved for FSA time credit purposes. See Rominger v.

Spaulding, No. 1:21-cv-00943, 2021 WL 2894760, at *4 (M.D. Pa. July 9,

2021) (“[FSA time] credits are earned only when an inmate successfully

completes one of the BOP-approved EBRR programs or PAs related to

one of the particular needs assigned to that inmate.”) (internal quotation

marks omitted), appeal filed, No. 21-2527 (3d Cir. Aug. 17, 2021);

Rehfuss, 2021 WL 2660869, at *5 (“[O]nly those EBRRs and PAs

described in the First Step Approved Programs Guide qualify for [FSA]

Time Credits under the FSA[.]”); see also Delahoz, 2021 WL 3884350, at

*4 (“If an inmate could accrue FSA [time] credits by participating in any

type of recidivism-reduction program or activity, the statutory language

instructing the BOP to establish and implement an individualized risk

and needs assessment system, 18 U.S.C. § 3632(a), (b), would be

superfluous.”); Rehfuss, 2021 WL 2660869, at *5 (same).27

Based on the foregoing, the petitioner has accrued no EBRR or PA

program credit based on his completion of RHU Our Solar System, RHU

Email Basics, RHU Checkbook Math, and RHU ASVAB Career

Exploration.

F. Computation of FSA Time Credits

Altogether, Bains has earned a total of 1,043 hours of EBRR and

PA program credit. Converted into 8-hour “days” of participation,28 this

amounts to 130⅜ days of EBRR/PA participation. As a low-risk inmate,

Bains is entitled to 15 days of FSA time credits for every 30 days of

successful EBRR or PA participation. See 18 U.S.C. § 3632(d)(4)(A). The

FSA does not provide for partial FSA time credit awards. See Rehfuss,

2021 WL 2660869, at *5.

Accordingly, Bains has at this time accrued sufficient hours of

successful EBRR/PA participation to earn four 15-day awards of FSA

time credits, for a total of 60 days of FSA time credits. Thus, under the

27 Moreover, we note that even if Bains were credited with the 12

hours of instructional time implicated by these four independent-study

courses, it would be insufficient to reach the next 30-day threshold

necessary for him to earn an additional 15-day period of FSA time credits.

28 See supra note 20.

FSA, Bains is entitled to immediate, mandatory placement in prerelease

custody no earlier than March 27, 2022.29 See 18 U.S.C. § 3632(d)(4)(C);

id. § 3624(g)(2) id. § 3624(g)(1)(D)(i)(I). This has been the respondent’s

position from the outset.

III. RECOMMENDATION

For the foregoing reasons, it is recommended that the petition for a

writ of habeas corpus be DENIED without prejudice to any future

petition should the petitioner remain incarcerated as the date of his

entitlement to non-discretionary prerelease custody approaches.

Dated: October 27, 2021 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge

29 As discussed supra, we note that, in the alternative, the FSA

authorizes the BOP, in its discretion, to grant Bains an early transfer to

supervised release on that same date, March 27, 2022. Of course, the

BOP also retains discretion under the auspices of § 3624(c) to transfer

Bains to prerelease custody in an RRC at an earlier date, or to prerelease

custody in home confinement as early as November 26, 2021. We note

that, although the respondent has been entirely noncommittal with

respect to such a discretionary transfer to prerelease custody, the

petitioner’s records suggest an anticipated transfer to prerelease custody

in an RRC in early December 2021, which would moot this petition.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SUKHJIT BAINS,

Petitioner, CIVIL ACTION NO. 3:21-cv-00353

v. (KANE, J.)

(SAPORITO, M.J.)

HERMAN QUAY, Warden of

Allenwood Low Security Federal

Correctional Institution,

Respondent.

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the

foregoing Report and Recommendation dated October 27, 2021. Any

party may obtain a review of the Report and Recommendation pursuant

to Local Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed

findings, recommendations or report addressing a

motion or matter described in 28 U.S.C. § 636(b)(1)(B)

or making a recommendation for the disposition of a

prisoner case or a habeas corpus petition within

fourteen (14) days after being served with a copy thereof.

Such party shall file with the clerk of court, and serve

on the magistrate judge and all parties, written

objections which shall specifically identify the portions

of the proposed findings, recommendations or report to

which objection is made and the basis for such

objections. The briefing requirements set forth in Local

Rule 72.2 shall apply. A judge shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which

objection is made and may accept, reject, or modify, in

whole or in part, the findings or recommendations made

by the magistrate judge. The judge, however, need

conduct a new hearing only in his or her discretion or

where required by law, and may consider the record

developed before the magistrate judge, making his or

her own determination on the basis of that record. The

judge may also receive further evidence, recall witnesses

or recommit the matter to the magistrate judge with

instructions.

Failure to file timely objections to the foregoing Report and

Recommendation may constitute a waiver of any appellate rights.

Dated: October 27, 2021 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge