loper bright | Legal Information Services Associates LLC

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LOPER BRIGHT TO THE RESCUE ON FSA RULES?

Raahshjeem Benson (we’ll just call him ‘George’) was sentenced in December 2020. But he was not transferred to his designated Bureau of Prisons facility for 15 months after that, instead staying in a county lockup. When George finally got to his designated federal prison, the BOP administered his individualized risk and needs assessment, and he started earning FSA credits.

George asked for credits for the 15 post-sentence months he spent in county, where – according to him – he participated in programming or productive activities which should earn him First Step Act time credits under 18 USC § 3632. These credits can be applied to shave up to a year off a prison sentence, and any excess credits earned beyond that buy a prisoner more halfway house and home confinement at the end of a sentence.

But because George didn’t receive the individualized assessment of needs that First Step requires the BOP to perform on every prisoner in order to match him or her with the most effective programs until after he had completed 15 months of programs, the BOP refused to give him any credits for the programs he had taken before reaching his designated prison.

Benson filed a pro se 28 USC 2241 habeas petition, requesting that the BOP be ordered to award him about 150 FSA credits he said he earned for programs completed while in the county jail. Without conducting discovery or requiring a response from the Government, the district court dismissed his petition.

Last week, the 4^th Circuit vacated the decision and sent the case back to the district court. While it would be easy to read too much into the Circuit’s ruling, two holdings are significant.

First, after George’s needs assessment, the BOP calculated that he was at medium risk for recidivism under the PATTERN system. Medium-risk inmates can earn FSA credits but normally cannot use them until their recidivism risk falls to low or minimum. The government argued that since George couldn’t use any of the credits he wanted awarded to him, he had no standing to bring the habeas corpus.“Standing” is a constitutional concept: a petitioner who has nothing at stake in the suit lacks standing to bring the action, and the case is dismissed as moot. For a controversy to be moot, the 4^th held, it must lack at least one of the three required elements of Article III standing: (1) injury in fact, (2) causation, or (3) redressability. Because recidivism levels can change with prisoners’ age and completion of programs (among other reasons), the Circuit ruled that George had a reasonable chance of being able to use his FSA credits in the future. What’s more, the FSA lets medium- and high-risk inmates “petition to be transferred to prerelease custody or supervised release [upon] approv[al] by the warden of the prison,” based on determinations listed in 18 USC § 3624(g)(1)(D)(i)(II), so George had a chance of using the credits, even if it was not a very strong chance.

Thus, “the FSA does not squarely foreclose a prisoner’s eligibility for prerelease custody or supervised release based on a single determination that he has a “medium” risk of recidivism,” the Court said. While “it limits that prisoner’s options, [] it leaves two paths to eligibility… (1) two subsequent reassessments of “low” risk; or (2) the warden’s approval of the prisoner’s petition.” These paths are enough to give George standing to bring the habeas.

On the merits of George’s claim, the BOP argued on appeal that the statute requires “successful participation” in programs to earn FSA credits, and its rule requires that “successful participation” in programming must include a prior determination by BOP staff that the programs or productive activities have been recommended, based on the inmate’s individualized risk and needs assessment. 28 CFR § 523.41(c)(2). Because George was not evaluated until he reached prison, the agency argued, nothing he did while in county lockup could count. The BOP argued that its rule was a reasonable interpretation of the statute and thus the court had to accept the BOP’s interpretation under the well-known Chevron doctrine.

However, while George’s case was pending, the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo. The Loper Bright opinion held that courts were to decide questions of law without deferring to what the agencies charged with carrying out the laws thought they might mean. Thus, the 4^th Circuit sent the case back for the district court to decide whether “successful participation” in programming requires that the BOP evaluate the inmate first.

George has a lot of hurdles to cross back in district court, including showing that he actually did engage in worthwhile programs and productive activities while in county jail. But the Circuit’s standing holding and application of Loper Bright non-deference are a significant victory for inmates and the first of many successful attacks on BOP rules of questionable rationality.

Benson v. Warden, Case No. 24-6713, 2026 U.S.App. LEXIS 11454 (4th Cir. April 22, 2026)

Chevron USA Inc. v. NRDC, 467 US 837 (1984)

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

~ Thomas L. Root

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SCOTUS TAKES AIM AT CHEVRON DEFERENCE, AND WHY YOU SHOULD CARE

Nearly 40 years ago, the Supreme Court ruled in Chevron USA, Inc., v. Natural Resources Defense Council that courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. Last Monday, the Supreme Court agreed to reconsider its ruling in Chevron.

“Chevron deference” – as the doctrine is known – has been applied in well over a thousand cases involving the Federal Bureau of Prisons over the past four decades. In Yi v. Federal Bureau of Prisons, for instance, the 4th Circuit ruled that “rather than apply a presumption of lenity to resolve the ambiguity, Chevron requires that we defer to the agency’s reasonable construction of the statute. Chevron deference is a tool of statutory construction whereby courts are instructed to defer to the reasonable interpretations of expert agencies charged by Congress to fill any gap left, implicitly or explicitly, in the statutes they administer.”

In Lopez v. Davis, for instance, the Supreme Court upheld the BOP’s denial of RDAP credit to people with drug convictions if they had a 2-level gun enhancement (USSG § 2D1.1(b)(1)). The Court focused on the statutory text (18 USC § 3621(e)(2)(B)), which instructs that the BOP ‘may’ reduce the sentence of a nonviolent offender who has successfully completed a drug treatment program, The Court found that Congress’s use of the permissive “may” meant that the BOP had the authority but not the duty to reduce the terms of imprisonment of people in RDAP, and, applying Chevron deference, “the Bureau, the agency empowered to administer the early release program, has filled the statutory gap in a way that is reasonable in light of the legislature’s revealed design.”

Currently, district courts have applied Chevron deference to the BOP’s interpretation of the First Step Act alone in over 150 reported cases. Chevron deference has permitted agencies to be nearly immune to judicial second-guessing on both major and minor questions. The case coming to SCOTUS raises Chevron in a rather prosaic circumstance.

A group of commercial fishing companies challenged a National Maritime Fisheries Service rule that requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans.

Relying on Chevron, a divided US Court of Appeals for the DC Circuit rejected the companies’ challenge, holding that the law says the government can require fishing boats to carry monitors, it does not specifically address who must pay for the monitors. Because the NMFS’s interpretation of federal fishery law as authorizing industry-funded monitors was a reasonable one, the DC Circuit said, the court should defer to that interpretation.

Some members of the Supreme Court’s conservative majority have roundly criticized Chevron deference. Justice Thomas argued in 2015 that Chevron deference “wrests from Courts the ultimate interpretative authority to say what the law is, and hands it over to” the executive branch. He has been joined by Justice Gorsuch, who last fall argued in a dissent that the court “should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”

The Washington Post said, “The dryness of the [Chevron] doctrine masks the enormity of what is at stake. Chevron holds that a federal court must defer to an agency’s interpretation of a statute when issuing a rule, provided the interpretation is “reasonable…” This might seem like a straightforward ruling; in fact, it authorized a massive shift in power from Congress and the courts to the president. Most of the administrative agencies subject to Chevron are run by presidential appointments. These officials might have subject matter expertise, but their knowledge does not negate the fact that they make inherently political judgments, which the Constitution envisioned would be made by elected legislators.”