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.