Petition for Writ of Certiorari — William A. White, Petitioner v. Warden, Federal Correctional Institution, Cumberland

Supreme Court briefAug 5, 2026

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No.

IN THE SUPREME COURT OF THE UNITED STATES

WILLIAM A. WHITE, PETITIONER

v.

WARDEN OF FEDERAL CORRECTIONAL INSTITUTION - CUMBERLAND,

RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

_____________

PETITION FOR A WRIT OF CERTIORARI

JAMES WYDA

Federal Public Defender

CLAIRE MADILL

Assistant Federal Public Defender

Counsel of Record

6411 Ivy Lane, Suite 710

Greenbelt, MD 20700

(301) 344-0600 (tel.)

(301) 344-0019 (fax)

James_Wyda@fd.org

Claire_Madill@fd.org

Counsel for Petitioner

i

QUESTION PRESENTED

This Court has long recognized that individuals can have

property or liberty interest, protected by the Fifth and Fourteenth

Amendment Due Process Clauses, that is created by statute. For

example, although there is no inherent due process right to early

release from prison, the procedural component of the Due Process

Clauses protects prisoners’ statutory rights to good-time credits.

Wolff v. McDonnell, 418 U.S. 539 (1974). To determine whether a

statute creates a protected liberty interest, this Court asks whether

the law “contain[s] language mandating release under certain

circumstances.”

Board of Pardons v. Allen, 482 U.S. 369, 372

(1987). In this case, the Fourth Circuit Court of Appeals held that,

although the First Step Act contains mandatory language requiring

the earning of time credits for qualifying individuals, federal

prisoners do not have had statutorily created protected liberty

interest in those time credits because they are “contingent” upon

“conditions.” The question presented is:

Whether the First Step Act creates a legitimate right or

expectation in earning time credits for qualifying federal

prisoners that can give rise to a liberty interest protected by

the Fifth Amendment Due Process Clause?

ii

PARTIES TO THE PROCEEDING

The parties to the proceeding before the Court are as follows:

Petitioner (the petitioner-appellant) below is William White.

Respondent (appellee

below) is

the

Correctional Institution, Cumberland.

iii

Warden of the

Federal

RELATED PROCEEDINGS

This case arises from these proceedings:

White v. Warden, Federal Correctional Institution – Cumberland,

No. DKC-22-2371, 2023 WL 4867562 (D. Maryland July 31, 2023).

White

v.

Warden

of

Federal

Correctional

Institution

–

Cumberland, 164 F.4th 326 (4th Cir. 2026) (Case No. 23-7116).

White

v.

Warden

of

Federal

Correctional

Institution

Cumberland, No. 23-7116, 2026 WL 1091654 (4th Cir. 22, 2026).

iv

–

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................................................ ii

PARTIES TO THE PROCEEDING ................................................... iii

RELATED PROCEEDINGS ..............................................................iv

TABLE OF CONTENTS ................................................................... v

INDEX TO APPENDICES ............................................................... vii

TABLE OF AUTHORITIES ............................................................. viii

OPINIONS BELOW ....................................................................... 11

JURISDICTION ............................................................................. 12

CONSTITUTIONAL AND STATUTORY PROVISIONS ...................... 12

INTRODUCTION ........................................................................... 15

STATEMENT OF THE CASE ......................................................... 20

A.

Statutory Background .................................................... 20

B.

Constitutional Background ............................................. 23

C.

Factual Background ....................................................... 28

D.

Procedural History .......................................................... 28

REASONS FOR GRANTING THE PETITION ................................... 32

I.

Courts are split on the legal standard that applies when

determining whether a statute has created a right potentially

protected by the Due Process Clause. ................................... 32

II. The decision below is incorrect and conflicts with this Court’s

precedent. ............................................................................ 37

v

III. This case presents an important question of federal law. ...... 40

IV. This case is an excellent vehicle. .......................................... 41

CONCLUSION .............................................................................. 43

vi

INDEX TO APPENDICES

Appendix A: Opinion of the Fourth Circuit .............................. App.3

Appendix B: Opinion of the District Court ............................. App.34

Appendix C: Order Denying Rehearing/Rehearing En Banc

..................................................................................... App.55

vii

TABLE OF AUTHORITIES

Cases

Abed v. Armstrong, 209 F.3d 63 (2d Cir. 2000) ............................. 39

Adepoju v. Scales, 782 F. Supp. 3d 306 (E.D. Va. 2025) ............... 36

Anthony v. Wilkinson, 637 F.2d 1130 (7th Cir. 1980) .................... 27

Benson v. Edgefield, 174 F.4th 348 (4th Cir. 2026)....................... 22

Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) ... 15,

23

Cheng v. United States, 132 F.4th 655 (2d Cir. 2025) ................... 35

Dist. Atty’s Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52

(2009) ........................................................................................ 41

Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978) .......................... 33

Fancer v. Sirmons, 58 F. App’x 804 (10th Cir. 2003) ..................... 35

Fiorito v. Fikes, Case No. 22-CV-0749, 2022 WL 16699472 (D.

Minn. Nov. 3, 2022) ....................................................... 29, 36, 38

Fontanez v. Rardin, No. 2:23-cv-12415, 2024 WL 1776338 (E.D.

Mich. Apr. 24, 2024) ............................................................ 36, 39

Gonzalez v. Herrera, 151 F.4th 1076 (9th Cir. 2025)..................... 22

Gonzalez-Fuentes v. Molina, 607 F.3d 864 (1st Cir. 2010) ............. 33

Green v. McCall, 822 F.2d 284 (2d Cir. 1987) ......................... 26, 33

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1

(1979) .......................................................... 16, 25, 26, 27, 37, 38

Grennier v. Frank, 453 F.3d 442 (7th Cir. 2006) ........................... 33

Higgason v. Farley, 83 F.3d 807 (7th Cir. 1996) ........................... 36

Kentucky v. Dep’t of Corrections v. Thompson, 490 U.S. 454 (1989)

................................................................................ 15, 25, 26, 38

Miles v. Bower, 173 F.4th 372 (1st Cir. 2026) ............................... 22

viii

Montgomery v. Anderson, 262 F.3d 641 (7th Cir. 2001) ................ 25

Rodriguez v. Smith, 541 F.3d 1180 (9th Cir. 2008)........................ 21

Sandin v. Conner, 515 U.S. 472 (1995) ................. 16, 23, 27, 28, 38

Sedlacek v. Rardin, No. 24-1254, 2025 WL 948485 (6th Cir. 2025)

.................................................................................................. 35

Smith v. Org. of Foster Fams. for Equal. and Reform, 431 U.S. 816

(1977) ........................................................................................ 24

Sotherland v. Myers, 41 F. App’x 752 (6th Cir. 2002) .................... 39

Valladares v. Ray, 130 F.4th 74 (4th Cir. 2025)...................... 21, 34

Wilkinson v. Austin, 545 U.S. 209 (2005) .................... 16, 24, 25, 37

Woolsey v. Warden, No. 2:25-CV-137-WKW, 2025 WL 2598794

(M.D. Ala. Sept. 8, 2025)............................................................ 36

Statutes

18 U.S.C. § 3621 .............................................................. 14, 17, 22

18 U.S.C. § 3624 .................................................. 13, 21, 23, 29, 37

18 U.S.C. § 3632 ........................................................ 13, 17, 21, 22

28 U.S.C. § 1254 .......................................................................... 12

28 U.S.C. § 2241 .......................................................................... 28

57 Okl. St. Ann. § 365 (1990) ....................................................... 27

Rules

Supreme Court Rule 10 ................................................................ 40

Other Authorities

164 Cong. Rec. S7649 (daily ed. Dec. 17, 2018)............................ 20

Nathan James, Cong. Rsch. Serv., R45558, The First Step Act of

2018: An Overview (2019),

https://sgp.fas.org/crs/misc/R45558.pdf................................. 20

Remarks by President Trump at Signing Ceremony for S. 756, the

“First Step Act of 2018” and H.R. 6964, the “Juvenile Justice

ix

Reform Act of 2018,” 2018 WL 6715859, White House (Dec. 21,

2018) ......................................................................................... 20

U.S. Gov’t Accountability Off., GAO-26-107353, Bureau of Prisons:

Actions Needed to Better Achieve Financial and Other Benefits of

Moving Individuals to Halfway Houses on Time (2026)............... 40

U.S. Gov't Accountability Off., GAO-26-107268, Federal Prisons:

Improvements Needed to the System Used to Assess and Mitigate

Incarcerated People’s Recidivism Risk (2026) ................. 18, 23, 40

x

IN THE SUPREME COURT OF THE UNITED STATES

_____________

N O.

WILLIAM A. WHITE, PETITIONER,

V.

WARDEN OF FEDERAL CORRECTIONAL INSTITUTION - CUMBERLAND,

RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

William White respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the

Fourth Circuit in this case.

OPINIONS BELOW

The decision of United States Court of Appeals for the Fourth

Circuit has been reported as White v. Warden of Federal Correctional

Institution – Cumberland, 164 F.4th 326 (4th Cir. 2026). It is

reprinted in the appendix.

App.3.

The decision denying the

petition for rehearing/rehearing en banc is unpublished but is

11

available at White v. Warden of Federal Correctional Institution –

Cumberland, No. 23-7116, 2026 WL 1091654 (4th Cir. 22, 2026),

and is also reprinted in the appendix. App.55. The district court’s

decision is also unpublished, but is available at White v. Warden,

Federal Correctional Institution – Cumberland, No. DKC-22-2371,

2023 WL 4867562 (D. Maryland July 31, 2023) and reprinted in the

appendix. App.34.

JURISDICTION

The Fourth Circuit entered judgment on January 13, 2026

(App.3) and denied a timely rehearing petition on April 22, 2026

(App.55). On July 16, 2026, the Chief Justice extended the time to

file this petition until August 20, 2026. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment provides: “No person shall be held to

answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life or limb; nor shall

12

be compelled in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without just

compensation.”

The First Step Act states, inter alia:

“A

prisoner,

except

for

an

ineligible

prisoner

under

subparagraph (D), who successfully completes evidence-based

recidivism reduction programming or productive activities, shall

earn time credits[.]” 18 U.S.C. § 3632(d)(4)(A)(1).

“Time credits earned under this paragraph by prisoners who

successfully participate in recidivism reduction programs or

productive activities shall be applied toward time in prerelease

custody or supervised release. The Director of the Bureau of Prisons

shall transfer eligible prisoners, as determined under section

3624(g), into prerelease custody or supervised release.” 18 U.S.C.

§ 3632(d)(4)(C).

“Requirement to provide programs to all prisoners; priority.-The Director of the Bureau of Prisons shall provide all prisoners

with the opportunity to actively participate in evidence-based

recidivism reduction programs or productive activities, according to

13

their specific criminogenic needs, throughout their entire term of

incarceration.” 18 U.S.C. § 3621(h)(6).

14

INTRODUCTION

This Court should grant this petition to resolve a circuit split

regarding the legal standard for determining whether an individual

has a liberty interest, protected by the Due Process Clause, in some

statutory benefit, like parole or time credits.

The first step in any case claiming a violation of the Due

Process Clause is to identify the liberty interest protected by the

Clause. See Board of Regents of State Colleges v. Roth, 408 U.S.

564, 569-70 (1972). Sometimes, a state or federal government can

create such a liberty interest via a statute or regulations where one

would not otherwise exist.

To determine whether this has

happened (i.e., whether a law has created a liberty interest), a court

must look at the language of the law to ascertain whether it creates

a “justifiable expectation” in some right, privilege, or outcome.

Vitek v. Jones, 445 U.S. 480, 489 (1980). Where the law “plac[es]

substantive

limitations

on

official

discretion,”

usually

“by

mandating the outcome to be reached upon a finding that the

relevant criteria have been met,” a liberty interest arises. Kentucky

v. Dep’t of Corrections v. Thompson, 490 U.S. 454, 462 (1989)

15

(citations omitted). 1

Applying this test, this Court has held that

prisoners have protected liberty interests in good-time credits,2

parole, 3 preparole, 4 avoiding supermax prison, 5 and avoiding

transfer to a mental institution. 6

When a liberty interest exists,

basic procedural due process protections, like notice and a right to

a hearing, attach. Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

A split exists about whether a protected liberty interest can

arise from a statute where the relevant law uses mandatory

language and limits official discretion, but also places “conditions”

or “contingencies” on the statutory benefit.

Several circuits have

held that a liberty interest exists, as long as the statute uses

1 Prisoners must make an additional showing, not relevant to

this petition, to prevail on a claim that they have a protected liberty

interest. Specifically, prisoners must show not only that a statutory

right has been created, but also that the right affects the duration

of their sentence or that deprivation of it constitutes an “atypical

and significant hardship.” Sandin v. Conner, 515 U.S. 472, 484,

487 (1995).

As explained infra, because the Fourth Circuit

concluded that the First Step Act did not create any right or

expectation in the first place, it did not reach this second step.

2 Wolff v. McDonnell, 418 U.S. 539, 557 (1974).

3 Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S.

1 (1979); Morrissey v. Brewer, 408 U.S. 471 (1972).

4 Young v. Harper, 520 U.S. 143 (1997).

5 Wilkinson v. Austin, 545 U.S. 209 (2005).

6 Vitek, 445 U.S. 480.

16

mandatory language, even if the benefit will be awarded only when

conditions are met. E.g., Jackson v. Carlson, 707 F.2d 943, 946-47

(7th Cir. 1983). On the other hand, several circuits—including the

Fourth Circuit in this case—have held that a liberty interest cannot

arise,

even

if

a

statute

uses

mandatory, discretion-limiting

language, if the benefit is “conditional” or “contingent.”

E.g.,

App.16-17.

It is important to resolve this split, especially in light of the

First Step Act’s (FSA) creation of a new time credit scheme that

could implicate the Due Process Clause.

The FSA is a relatively

new law—it was enacted in 2018, but the time credit scheme was

not fully rolled out until years later. See 18 U.S.C. § 3632(a); 18

U.S.C. § 3621(h)(1)-(3). The FSA mandates that qualifying prisoners

earn and benefit from a new form of time credits, stating that

prisoners “shall earn time credits” that “shall be applied toward”

early release.

18 U.S.C. § 3632(d)(4)(A), (C) (emphases added).

Under this Court’s precedent, that language should be enough to

create a legitimate expectation that could give rise to a protected

liberty interest. E.g., Board of Pardons v. Allen, 482 U.S. 369, 37778 (1987). But several courts have now held that, notwithstanding

17

the mandatory language of the FSA, federal prisoners do not have a

liberty interest in FSA time credits because they must meet certain

qualifications (or “conditions”) before those credits are awarded or

applied. This has drastic consequences for federal inmates, as it

limits their options for seeking redress when the Bureau of Prisons

(BOP) wrongfully withholds credits and, as a result, keeps them

incarcerated for longer than authorized by statute. And a method

of redress, like procedural due process, is especially important

given that statistics show that the BOP is failing to properly apply

FSA time credits in 70.8% of cases. U.S. Gov’t Accountability Off.,

GAO-26-107268, Federal Prisons: Improvements Needed to the

System

Used

to

Assess

and

Mitigate

Incarcerated

People’s

Recidivism Risk (2026).

This case is an ideal vehicle to resolve this question. The due

process question was squarely presented and litigated below on a

motion to dismiss. Both the appellate and district courts addressed

it.

App.16-17, 52-54.

And, since the Fourth Circuit did not

address the second prong of the two-part test for ascertaining

whether a liberty interest exists, see supra n.1, this Court only need

to answer the first: whether the FSA uses the type of language that

18

gives rise to a legitimate expectation in FSA time credits for

qualifying individuals.

It need not ultimately conclude whether

federal prisoners have a protected liberty interest in credits.

For these reasons, this Court should grant certiorari in this

case.

19

STATEMENT OF THE CASE

This case deals with what procedural protections should apply

before the Bureau of Prisons (BOP) deprives a prisoner of First Step

Act (FSA) time credits to which he is statutorily entitled.

A.

Statutory Background

Enacted in 2018, the First Step Act (FSA) is “the most

significant criminal justice reform bill in a generation.” 164 Cong.

Rec. S7649 (daily ed. Dec. 17, 2018) (statement of Sen. Chuck

Grassley). As President Trump stated when signing it into law, the

statute had “incredible bipartisan support.” Remarks by President

Trump at Signing Ceremony for S. 756, the “First Step Act of 2018”

and H.R. 6964, the “Juvenile Justice Reform Act of 2018,” 2018 WL

6715859, at *2, White House (Dec. 21, 2018).

“The act was the

culmination of several years of congressional debate about what

Congress might do to reduce the size of the federal prison

population while also creating mechanisms to maintain public

safety.” Nathan James, Cong. Rsch. Serv., R45558, The First Step

Act

of

2018:

An

Overview

1

(2019),

https://sgp.fas.org/crs/misc/R45558.pdf.

To achieve these dual goals of reducing the prison population

20

and increasing public safety, the FSA, among other things, created

a new time credit for federal prisoners.

18 U.S.C. § 3632(d)(4).

Qualifying prisoners7 earn credits at a rate of 10 or 15 days per

“every 30 days of successful participation in evidence-based

recidivism reduction programming or productive activities.”

18

U.S.C. § 3632(d)(4)(A). Once an individual earns sufficient credits

and meets a certain low-risk-of-reoffending threshold, he is released

from a BOP prison and placed in the community, either on

supervision, in home confinement, or in a halfway house. 18 U.S.C.

§ 3632(d)(4)(C); 18 U.S.C. § 3624(g). 8

The

awarding

“mandatory.”

and

application

of

FSA

time

credits

is

Valladares v. Ray, 130 F.4th 74, 77, 79 (4th Cir.

2025); see also Benson v. Edgefield, 174 F.4th 348, 357 (4th Cir.

All federal prisoners earn time credits unless they are a

noncitizen with a final order of removal or were convicted of a

disqualifying offense. 18 U.S.C. § 3632(d)(4)(D).

7

The FSA requires that credits “be applied toward time in

prerelease custody or supervised release.”

18 U.S.C.

§ 3632(d)(4)(C). “Prerelease custody” refers to home confinement or

a “residential reentry center,” also known as a halfway house. 18

U.S.C. § 3624(g)(2); see Rodriguez v. Smith, 541 F.3d 1180, 1181

n.1 (9th Cir. 2008) (“[T]he parties both agree that RRCs were

formally referred to as Community Correction Centers (CCCs) and

are commonly known as ‘halfway houses[.]’”).

8

21

2026); Gonzalez v. Herrera, 151 F.4th 1076, 1080 (9th Cir. 2025).

The statute states that qualifying prisoners “shall earn time credits”

for participation in qualifying programming and that those credits

“shall be applied toward” early release. 18 U.S.C. § 3632(d)(4)(A),

(C) (emphases added). It also states that the BOP “shall provide all

prisoners with the opportunity to actively participate in evidencebased recidivism reduction programs or productive activities”—and

thus

earn

time

credits—“throughout

their

entire

term

of

incarceration.” 18 U.S.C. § 3621(h)(6). The statute contains two—

and only two—time-based exceptions.

A prisoner earns credits

throughout their entire term of incarceration, except for the time

periods before their sentence “commences” (as statutorily defined)

and before the enactment of the statute. 18 U.S.C. § 3632(d)(4)(B);

see also Miles v. Bower, 173 F.4th 372, 375, 382 (1st Cir. 2026);

Benson, 174 F.4th at 356-57.

A few additional prerequisites exist before credits that are

earned can be applied to accelerate an individual’s early release.

Once an individual earns an amount of FSA time credits equal to

the remainder of their sentence, they must be released to

supervision, home confinement, or a halfway house, as long as they

22

have been assessed to be a “low” or “minimum” risk of reoffending.

18 U.S.C. § 3624(g)(1).

According

to

a

2026

report

from

the

Government

Accountability Office, the BOP timely applied FSA time credits in

only 29.2% of cases, and 53.7% of prisoners never had any credits

of the credits they earned applied. U.S. Gov’t Accountability Off.,

GAO-26-107268, Federal Prisons: Improvements Needed to the

System

Used

to

Assess

and

Mitigate

Incarcerated

People’s

Recidivism Risk (2026).

B.

Constitutional Background

This case involves the procedural protections attendant to the

Due Process Clauses.

Obviously, under the Fifth and Fourteenth Amendment Due

Process Clauses, individuals may not be deprived of life, liberty, or

property without due process of law. Wolff v. McDonnell, 418 U.S.

539, 556 (1974). In order to state a due process claim, a plaintiff

must identify a “liberty interest” protected by the Due Process

Clause. Sandin v. Conner, 515 U.S. 472, 477 (1995); see also Roth,

408 U.S. at 569.

(This test applies to any plaintiff, prisoner or

otherwise. Roth, 408 U.S. at 569-72.)

23

A liberty interest can arise in two different ways. It might be

protected inherently by the Due Process Clause.

Austin, 545 U.S. 209, 221 (2005).

Wilkinson v.

But state and federal

governments can also create a right protected by the due process

clauses via positive law, like statutes. Id.; see also Smith v. Org. of

Foster Fams. for Equal. and Reform, 431 U.S. 816, 845 (1977)

(“[T]he Court has recognized that liberty interests may in some

cases arise from positive-law sources.” (citing Wolff, 418 U.S. at

557)). For example, although this Court has held that there is no

inherent right to parole under the Due Process Clause, if the state

or federal government grants that right, then “due process

protections attach to the decision to revoke parole.” Vitek, 445 U.S.

at 488 (citing Morrissey, 408 U.S. 471). Similarly, this Court has

held that while “the Constitution itself does not guarantee goodtime credit for satisfactory behavior while in prison,” where the

government “has not only provided a statutory right to good time

but also specifies that it is to be forfeited only” under specified

circumstances

(like

“serious

misbehavior”),

the

Constitution

prohibits the denial or removal of good-time credits without

affording procedural due process. Wolff, 418 U.S. at 557.

24

To analyze whether a statute has created a liberty interest, a

court must start with the “threshold question,” Wilkinson, 545 U.S.

at 221: whether there is language that “creates a protectible

expectation” in some privilege or right.

Greenholtz v. Inmates of

Neb. Penal & Corr. Complex, 442 U.S. 1, 11 (1979); see also Vitek,

445 U.S. at 489. In the context of incarcerated folks, “[u]nilateral

expectations and hopes for early release do not” create a liberty

interest.

Montgomery v. Anderson, 262 F.3d 641, 644 (7th Cir.

2001) (citing Thompson, 490 U.S. 454 & Allen, 482 U.S. 369). But,

where the government “gives prisoners more than a subjective hope

of receiving . . . credit,” then the Due Process Clause is triggered.

Id. at 645; see also Thompson, 490 U.S. at 463; Vitek, 445 U.S. at

490-91.

This Court has consistently articulated the legal test for

ascertaining whether the government has created a legitimate

expectation. Where a statute uses mandatory language and limits

the government’s discretion to withhold some right or benefit, this

prong is satisfied. Thompson, 490 U.S. at 463. For example, this

Court held that Montana law had created a protected liberty

interest in parole because “the Montana statute, like the Nebraska

25

statute [found to create a protected liberty interest in Greenholtz],

uses mandatory language (‘shall’) to ‘creat[e] a presumption that

parole release will be granted’ when the designated findings are

made.” Allen, 482 U.S. at 377 (quoting Greenholtz, 442 U.S. at 12).

In contrast, where a statute uses discretionary language to talk

about a privilege or right, a liberty interest does not arise.

For

example, this Court held that Kentucky inmates did not have a

liberty interest in visitation privileges where the regulations

governing the right to visitation “lack[ed] the requisite relevant

mandatory language.” Thompson, 490 U.S. at 464.

This Court has also made clear that the existence of

“conditions” or “contingencies” attached to a statutory right does

not necessarily remove it from the ambit of the Due Process

Clauses’ protection. For example, in Allen, this Court held that a

“protectable liberty interest [was] created by Montana statute

requiring that a prisoner ‘shall’ be released when certain conditions

are met.”

Green v. McCall, 822 F.2d 284, 289 (2d Cir. 1987)

(emphasis added) (citing Allen, 482 U.S. 369); see also Allen, 482

U.S. at 374.

Similarly, this Court concluded that Oklahoma

inmates had a protected liberty interest in the “preparole,” even

26

though to qualify for preparole, inmates had to satisfy certain

conditions, including that they had shown good behavior in prison

and had either have served 15% of their sentence or be within 1

year of their parole consideration date or projected release date.

Young v. Harper, 520 U.S. 143, 144-45 (1997); see also 57 Okl. St.

Ann. § 365 (1990). In Greenholtz, this Court held that Nebraska

prisoners had a protected liberty interest in parole, even though the

statute mandated release only if the board of parole did not make

specified findings. 442 U.S. at 11; see also Anthony v. Wilkinson,

637 F.2d 1130, 1143 (7th Cir. 1980) (noting that Greenholtz

involved “a loss of . . . contingent liberty interests”).

In the context of prisoners (as opposed to other plaintiffs), this

Court has added an additional prong to the legal standard for

determining whether a statutorily created liberty interest exists.

Even where a statute uses mandatory language creating some sort

of legitimate expectation in a benefit, a liberty interest exists only if

the right is of a sufficient “nature” to trigger due process protection.

Sandin, 515 U.S. at 481-82. This prong can be satisfied by showing

either (a) that the government’s actions affected the duration of the

sentence or (b) that the statute or regulation “imposes atypical and

27

significant hardship on the inmate in relation to the ordinary

incidents of prison life.” Id. at 484, 486-87.

C.

Factual Background

Petitioner William White is serving a federal prison sentence.

App.4. He qualifies to earn FSA time credit acts and, has in fact,

earned many. App.4, 6. But the BOP refused to provide him credit

for two periods of time: when he was Special Housing Unit (SHU)

due to insufficient bed space and for the time he was in a BOP

transfer center because he was being moved. App.4-5, 22-23, 3536.

D.

Procedural History

Mr. White filed a 28 U.S.C. § 2241 petition challenging the

denial of FSA time credits for the time he spent in the SHU and in

the transfer center. App.6, 34. He argued that the denial of credits

was both contrary to the text of the FSA and violated his procedural

due process rights because he was not provided, inter alia, with

notice, an explanation for the denial, or an opportunity to contest it.

App.4, 6, 36, 49. While Mr. White’s petition was pending, the BOP

reversed its position as to the time Mr. White spent in the SHU and

awarded him credits for that time.

28

App.24, 38, 49.

But it still

refused to provide him with credits for the time he spent in the

transfer center. App.49.

The district denied Mr. White’s petition.

App.54.

As to the

due process question, the district court concluded that Mr. White

did not have a protected liberty interest in FSA time credits for two

reasons. App.54. First, the district court reasoned there was no

liberty interest because FSA time credits are “contingent,” i.e., that

prisoners must meet certain threshold requirements before their

credits can be applied to early release. App.53. Second, the district

court concluded that no liberty interest existed because FSA time

credits could be applied “‘toward time in prerelease custody or

supervised

release’”

and,

according

to

the

district

court,

“[p]rerelease custody, however, is just another form of BOP custody,

see 18 U.S.C. § 3624(g)(2)[.]” App.53 (quoting Fiorito v. Fikes, Case

No. 22-CV-0749, 2022 WL 16699472, *5 (D. Minn. Nov. 3, 2022)).

A divided panel of the Fourth Circuit affirmed. App.3. As to

the due process question, 9 the panel majority concluded that “a

Over Judge King’s vehement dissent, the panel majority

concluded that Mr. White was not statutorily entitled to FSA time

credits because he failed to show that he actually participated in

qualifying programming. App.16. As Judge King explained in his

9

29

prisoner claiming rights to FSA time credits cannot show that he

has a statutory entitlement to those credits.”

App.16.

In the

majority’s view, “[a]lthough awarding FSA time credits is mandatory

if the prisoner qualifies for and earns them,” the fact that there were

conditions precedent to the application of credits “indicate[s] that

the prisoner cannot legitimately expect that he has a right to them.”

App.16. Per the majority: “Because the earning and application of

FSA time credits are contingent upon numerous conditions both

within and outside of a prisoner’s control, the FSA does not create a

statutory entitlement to those credits.” App.17.10 In reaching this

conclusion, the Fourth Circuit did not apply (or even really cite) this

Court’s precedent on state-created liberty interests. App.15-18.

Mr. White filed a petition for rehearing and rehearing en banc.

dissent, and Mr. White bolstered in his petition for

rehearing/rehearing en banc, the evidence indicated that Mr. White

did participate in qualifying programming and, in any event, he

would have been granted credits regardless under prevailing BOP

policy had the panel reversed. App.29-33, 60-62. If Mr. White was

given the procedural due process protections he requested, like a

hearing and opportunity to contest the denial of FSA time credits,

he could have made these points to the BOP.

Because BOP’s actions violated the statute, Judge King’s

dissent found it unnecessary to review the due process claim.

App.19 n.1.

10

30

See App.55. Among other arguments, Mr. White pointed out that

the panel’s “conditional” reasoning on the due process claim

conflicted with decisions from this Court and other circuit courts of

appeal.

The once-again-divided panel issued an unpublished

opinion denying Mr. White’s petition. App.55. The panel did not

address Mr. White’s conflict argument. App.56-58.

31

REASONS FOR GRANTING THE PETITION

I.

Courts are split on the legal standard that applies when

determining whether a statute has created a right

potentially protected by the Due Process Clause.

The circuit courts are split on whether the conditional or

contingent nature of a statutory privilege exempts the statute from

the Due Process Clauses’ procedural protections. On the one hand,

the First, Second, and Seventh Circuits have recognized that a

statutorily created liberty interest can arise from rights that are

only awarded when certain conditions are met. On the other hand,

the Fourth, Seventh, and Tenth Circuits have held otherwise,

concluding that a liberty interest cannot arise where the statute

conditions the obtaining of a right on certain contingencies.11

District courts have also split on this question.

Many circuit courts have followed this Court’s clear holdings

that a liberty interest can be created by statute, even where the

right at issue is “conditional.” For example, in holding that federal

inmates have a liberty interest in good-time credits, the Seventh

Circuit made clear that the “conditional” nature of a statutory

11 Obviously, this indicates that the Seventh Circuit appears to

have an intra-circuit conflict on this issue, thus further illustrating

the confusion in the lower courts.

32

benefit does not remove it from Due Process Clause protection: “[I]f

the government creates . . . a firm expectation that if the prisoner

complies with specified conditions he will automatically earn the

credits and be released earlier—a deprivation of that right is a

deprivation of liberty.” Jackson, 707 F.2d at 947 (emphasis added);

see also Grennier v. Frank, 453 F.3d 442, 444 (7th Cir. 2006) (“It

takes mandatory language (and thus an entitlement contingent on

facts that could be established at a hearing) to create a liberty or

property interest in an opportunity to be released on parole.”

(emphasis added)). Similarly, the First Circuit found a protected

liberty interest in prisoners’ early release to electronic monitoring,

even though “eligibility criteria” (i.e., conditions) existed for the

program. Gonzalez-Fuentes v. Molina, 607 F.3d 864, 870, 890 (1st

Cir. 2010). And the Second Circuit held that a federal prisoner had

a protected liberty interest in parole release, even though parole

could be rescinded under certain “conditions.” Drayton v. McCall,

584 F.2d 1208, 1214-15 (2d Cir. 1978); see also Green, 822 F.2d at

289 (recognizing that a liberty interest is created where a “statute

requir[es] that a prisoner ‘shall’ be released when certain conditions

are met” (citing Allen, 482 U.S. 369)).

33

But, as this issue has reared its head again in light of the

newly created FSA time credits, other circuit courts have suddenly

shifted and started applying a different test.

Instead of simply

asking whether the language of the relevant statute uses mandatory

language that limits official discretion, courts are now asking

whether the right is “unconditional.” For example, in this case, the

Fourth Circuit recognized that the FSA used mandatory language

with respect to its time credits.

App.16 (“[A]warding FSA time

credits is mandatory if the prisoner qualifies for and earns them[.]

(emphasis omitted)); see also Valladares 130 F.4th at 77 (“The First

Step Act established a system of mandatory time credits for

incarcerated individuals who participate in recidivism reduction

programming, with limited exceptions.”). Under this Court’s prior

precedent, that should have ended the matter, and the court of

appeals should have proceeded to the second step of the dueprocess test (related to the nature of the right). But, instead, the

Fourth Circuit changed the legal standard for the first step of the

liberty interest test for prisoners. It was not enough for the statute

to use mandatory language; rather, a prisoner had to also show

that the privilege was not “contingent upon numerous conditions.”

34

App.16-17.

The Fourth Circuit is not alone in this conclusion. The Sixth

Circuit reached the same conclusion, albeit in an unpublished case.

Per the Sixth Circuit: “[B]ecause the FSA earned-time credits are

conditional, they do not create a liberty interest.”

Sedlacek v.

Rardin, No. 24-1254, 2025 WL 948485, at *1 (6th Cir. 2025). 12

And some circuit courts apparently adopted this “conditional”

test even before the FSA. For example, the Tenth Circuit held that

a prisoner did not have a legitimate expectation in Oklahoma earlyrelease credits because the application of those credits was

“contingent on events outside of Fancher’s, or prison officials’,

control.” Fancer v. Sirmons, 58 F. App’x 804, 807 (10th Cir. 2003).

Similarly, the Seventh Circuit held there was no protected liberty

interest in a prisoner’s access to social and rehabilitative activities,

12 The Fourth Circuit claimed that

its decision accorded with

the Second Circuit (App.17), but that is not true. In Cheng v.

United States, 132 F.4th 655, 659 (2d Cir. 2025) (per curiam), the

Second Circuit held that a particular inmate did not have a liberty

interest in FSA time credits because the petitioner was a noncitizen

with a final order of removal, a category of individuals expressly

precluded by statute from the FSA’s time-credit program. Thus,

Cheng could not claim a reasonable expectation of a right in such

credits. In contrast, Mr. White did qualify for the earning of credits

and, had in fact, earned many. App.4, 38.

35

even those activities would have resulted in good-time credits.

Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996). According to

the court, no liberty interest existed because “it was not inevitable

that he would complete an educational program and earn good time

credits”—in other words, the earning of credits was “contingent” on

other factors. Id.

Not only are the circuit courts of appeals split, but lower

courts are also confused. Some have held that federal prisoners do

have a protected liberty interest in FSA time credits. E.g., Woolsey

v. Warden, No. 2:25-CV-137-WKW, 2025 WL 2598794, at *16-*17

(M.D. Ala. Sept. 8, 2025); Adepoju v. Scales, 782 F. Supp. 3d 306,

320-21 (E.D. Va. 2025). Others, like the district court here, have

concluded the opposite. E.g., App.52-54; Fontanez v. Rardin, No.

2:23-cv-12415, 2024 WL 1776338, *2 (E.D. Mich. Apr. 24, 2024);

Fiorito, 2022 WL 16699472, at *5-*6. These disparate conclusions

provide further evidence of the need for clarification in this area of

law.

In short, this Court should grant certiorari in this case to

address the lower court confusion and conflict over whether or how

the “conditional” nature of a statutory entitlement impacts whether

36

a protected liberty interest can be created.

II.

The decision below is incorrect and conflicts with

this Court’s precedent.

The Fourth Circuit, along with the Sixth and Seventh Circuit

cases that align with it, erred in holding that an individual cannot

have a legitimate expectation in a conditional right or benefit. As

explained above, virtually every case where this Court has found a

protected liberty interest in a statutory entitlement involved

conditions.

Supra 26-27; Wilkinson, 545 U.S. at 215-17; Young,

520 U.S. at 144-45; Allen, 482 U.S. at 372-74; Vitek, 445 U.S. at

490-91; Greenholtz, 442 U.S. at 11; Wolff, 418 U.S. at 545-53;

Morrissey, 408 U.S. at 479-82. Indeed, good time credits—which

everyone agrees are protected by the Due Process Clauses 13—are

conditional: prisoners are entitled to them, but only “subject to

determination by the Bureau of Prisons that, during that year, the

prisoner has displayed exemplary compliance with institutional

disciplinary regulations.” 18 U.S.C. § 3624(b)(1). In fact, to adopt

the Fourth Circuit’s “conditional” test would mean, essentially, that

prisoners virtually never would have statutorily created liberty

13 Wolff, 418 U.S. 539; Jackson, 707 F.2d at 946-47.

37

interest, as it is hard to imagine a statute providing for the

unconditional early release of a prisoner. Instead of allowing this

illusory standard to fester in lower courts, this Court should take

this case to reaffirm that legal test remains what this Court already

has established: “[A] State creates a protected liberty interest by

placing substantive limitations on official discretion,” specifically,

“by establishing substantive predicates to govern official decisionmaking, and, further, by mandating the outcome to be reached

upon a finding that the relevant criteria have been met.” Thompson,

490 U.S. at 462 (citations and quotation marks omitted).

That the Fourth Circuit went astray is not surprising given the

analysis it put forward. The Fourth Circuit did not apply any of this

Court’s seminal due process cases, like Thompson, Greenholtz,

Wolff, or Sandin.

language,

App.15-17.

discretion-limiting

It did not apply the mandatorylegal

standard

this

Court

has

articulated. Id. And neither did the district court. App.52-54.

It is easy to trace how courts, like the one here and in Fiorito,

arrived at this erroneous articulation of the liberty interest

standard.

In short, it stems from sloppy citation or selective

reading of precedent.

Take, for example, Fontanez, 2024 WL

38

1776338. That case cited an unpublished Sixth Circuit opinion for

the

proposition

that

“a

federal

prisoner

does

not

have

a

constitutionally protected liberty interest in earning future sentence

credits”—i.e., that no liberty interest exists if the credits remain

conditional. Id. at *2 (citing Sotherland v. Myers, 41 F. App’x 752,

753 (6th Cir. 2002)). Sotherland, in turn, cited Abed v. Armstrong,

209 F.3d 63 (2d Cir. 2000) for this proposition. Sotherland, 41 F.

App’x at 753.

But Abed, read in full, does not support this

proposition. Abed said: “Although inmates have a liberty interest in

good time credit they have already earned, no such interest has

been recognized in the opportunity to earn good time credit where,

as here, prison officials have discretion to determine whether an

inmate or class of inmates is eligible to earn good time credit.” Abed,

209 F.3d at 66-67 (emphasis added) (citations omitted).

That is

merely a correct articulation of this Court’s precedent: that a

prisoner cannot have a reasonable expectation in time credits if the

statute gives prison officials unfettered discretion to award them.

But, by dropping the second half of that sentence when citing Abed,

cases like Fontanez and Sotherland—wrongly—morphed the test

into something akin to the “conditional” test.

39

This Court should

step in to correct this error.

III.

This case presents an important question of federal

law.

In addition to resolving the circuit split discussed above, the

Court should grant certiorari in this case because it presents an

important question of federal law. Supreme Court Rule 10(c). As

this Court’s recent certiorari grant in Maxwell v. Thomas, 25-5930,

reflects, issues related to the BOP’s administration of the FSA time

credit system are frequently recurring. Indeed, reports indicate that

the BOP frequently violates the plain text of the FSA when

See U.S. Gov’t Accountability Off.,

administering this program.

GAO-26-107268, Federal Prisons: Improvements Needed to the

System

Used

to

Assess

and

Mitigate

Incarcerated

People’s

Recidivism Risk (2026) (noting, inter alia, that BOP was properly

applying FSA time credits in only 29.2% of cases); U.S. Gov’t

Accountability Off., GAO-26-107353, Bureau of Prisons: Actions

Needed to Better Achieve Financial and Other Benefits of Moving

Individuals to Halfway Houses on Time (2026) (noting that

individuals

were

not

being

properly

transferred

to

home

confinement or a halfway house and that BOP did not even know

40

the “full scale of the issue” because it was not properly tracking the

relevant data).

Accordingly, the question of whether federal

prisoners have procedural due process recourse within the BOP

system itself will continue to arise and will have enormous

consequences for the lives of incarcerated individuals forced to

potentially serve a sentence longer than statutorily permitted.

What’s more, according to counsel’s research, this Court has

not taken a case addressing how a statute creates a liberty interest

for prisoners in many years. See Dist. Atty’s Off. for Third Jud. Dist.

v. Osborne, 557 U.S. 52 (2009). Lower courts would surely benefit

from additional clarification in this area of law, especially as courts

continue to apply it in the FSA context.

IV.

This case is an excellent vehicle.

This case provides an exceptional vehicle to review the

question presented. The case squarely presents the question: Mr.

White raised the due process claim both before the district court

and the Fourth Circuit (App.4, 6, 36, 41), and both courts directly

addressed it (App.15-17, 52-54). Because the case was decided on

a motion to dismiss and the question presented involves a pure

question of law (App.35), the Court will not have to wade through

41

any messy factual disputes to address the question. Additionally,

because the Fourth Circuit Court of Appeals did not address the

second element of this Court’s two-prong test for determining

whether a liberty interest arises from a statute for prisoners (see

App.15-17), this Court need not address that element or even

answer the ultimate question of whether a protected liberty interest

in FSA time credits exists. Rather, it need only to address the first

prong of the test (i.e., whether the FSA uses the sort of mandatory,

discretion-limiting language that can give rise to a protected liberty

interest).

If this Court answers this question in the affirmative,

then it can remand for further proceedings to determine whether

Mr. White satisfied the other prong of the liberty interest test and

thus was in fact entitled to procedural protections before the BOP

could deny him FSA time credits.

42

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JAMES WYDA

Federal Public Defender

CLAIRE MADILL

Assistant Federal Public Defender

Counsel of Record

6411 Ivy Lane, Suite 710

Greenbelt, MD 20700

(301) 344-0600 (tel.)

(301) 344-0019 (fax)

James_Wyda@fd.org

Claire_Madill@fd.org

Counsel for Petitioner

August 2026

43

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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