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National Failure of FSA Early Release Incentive Programming- Majority Opinions: The Pivot & Dump-

Updated: Sep 27, 2021

-An Article by Federal Sentencing Alliance in collaboration with Interrrogating Justice

Majority Opinions: The Pivot & Dump-

It has come to our attention that whenever national time credit cases go sour they are always based upon one of two events:

1.) the Court dumps the habeas petition for failure to exhaust administrative remedies; or 2.) the Court pivots in one sentence and then only cites caselaw supporting its pivoted position in order to dump the case.

Bear in mind that dozens of the same district courts engaging in time credit pivot & dump performances, found ways to grant petitions for compassionate release during the height of the COVID-19 pandemic, without inmate exhaustion of administrative remedies, or jurisdiction, per se. They just did it anyway.

With that backdrop we are surprised that even the most liberal of districts in the Second Circuit have fully embraced the time credits pivot & dump majority mentality. Why we ask? Is something else going on here?

The pivot oftentimes involves a misstatement of the law.

The pivot oftentimes involves a misstatement of the issue(s) to be decided.

The pivot oftentimes ignores facts that are not in dispute.

The pivot oftentimes hinges on something said by the BOP, accepted as Gospel, without challenge, e.g. "the BOP contends". That is a red flag.

The pivot does not spawn from, and does not trace back to, any First Step Act provision on point, or at issue.

The pivot ignores successfully completed time credit records, appended to the habeas petition itself; that are just left hanging there like a dead bird.

The pivot ignores different BOP arguments made from identical issues presented in prior cases argued nationally.

The pivot ignores whether BOP policies stated are official and published, unofficial and unpublished, or just made up in the courtroom, after a phone call, on the fly.

The pivot ignores that the BOP actually waived alleged rights not to do the things that the BOP already did, regarding any particular petitioner.

The pivot is unconcerned about substantial fairness, published BOP promises made, the doctrine of unclean hands, good faith and fair dealing, common law doctrines, Congressional intent, or irreparable harm being caused by the pivot & dump.

The dump ignores exceptions for failure to exhaust administrative remedies, such as futility, and ignores the irreparable harm being caused by oppressive BOP Policies, Rules and Procedures in place, upon which the filed petition rests.

The dump ignores determination that liberty interests may exist for inmate time credits earned, but never applied, from 2019-2021, rendering any later untimely application effectively moot.

The dump ignores the harm caused simply from the passage of time.

The dump ignores that earned time credits are no different than good time credits requiring timely application to be of any benefit whatsoever.

The pivot and dump look unfair, because they are unfair. Time credits directly effect the length of an inmate's incarceration. Ignoring the existence of time credits due from successful completion of any milestone incentive programming event, causes irreparable harm to those that painstakingly earned those credits, per se.

The pivot and the dump appears to effectively short-stop tens of thousands of time credit habeas corpus petitions from being filed nationally. All incentive programming inmates are being short-stopped right now, without public outcry.

The pivot and dump has nothing to do with the justiciable nature of a time credit habeas corpus petition filed.

Minority court decisions are opposite from majority court opinions on the same points, legal issues raised, and arguments made. But, there is only one truth, not two.

Statutory rights conferred to inmates under the First Step Act, for timely application of 2019-2021 time credits already earned, by definition, have been rendered ultra vires through BOP's administration of incentive programming.

The majority is loathe to utter words such as "waiver", "ultra vires", "liberty", or "mandamus", reciting instead, the common incantation "failure to exhaust administrative remedies".

Statutory rights conferred are ultra vires, based on the manner in which the BOP has applied First Step Act provisions to incentive programming in 2019-2021, including through ad hoc BOP Rule and Policy changes.

BOP's Policies, Rules, Procedures and Arguments cannot, and do not, stand muster when critically analyzed by a district court judge willing to embrace these things head on. But, the majority of district court judges are unwilling to do so, through wilful avoidance of genuine core issues.

Whether the BOP has fully implemented incentive programming for the entire bureau of prisons, or not, is wholly irrelevant to examination of any particular habeas corpus petition on the merits, regarding an individual inmate. If the BOP was not mandated to place an inmate into any particular program or activity in 2019-2021, the fact remains that the BOP did anyway. Why isn't that considered an argument "waiver"? We have no idea.

All the "could have", "should have", "would have", "may have" arguments are wholly irrelevant to what the BOP "actually did" with regard to any particular inmate's incentive programming engaged and successfully completed. We have never seen the majority use the word "waiver" in any of these pivot and dump cases. That's a red flag.

The First Step for Correcting an Abused System is to Identify the Abuse-

The BOP changed its Rules midstream on November 25, 2020, to support current and future legal arguments made in court after those Rule changes were made. The Rule changes are not supported by underlying First Step Act provisions; again making relevant substantive rights provisions ultra vires.

The Rule changes make it much easier for the majority of districts to pivot & dump.

The BOP has convinced the majority of courts that it has no authority to apply time credits at all for programs and activities completed under the First Step Act from December 21, 2018, through January 15, 2020, again, misstating First Step Act provisions.

The BOP has convinced the majority of courts that it is not mandated to apply time credits awarded for programs and activities completed from January 15, 2020, through January 14, 2022, until after January 15, 2022.

The BOP has convinced the majority of courts that it does not matter how many inmates are discharged time served without time credits applied, from December 21, 2018, through January 15, 2022, because those inmates are allegedly not entitled to timely application of time credits anyway. Its easy to see how absurd and unfair the majority opinions truly are.

The BOP has not addressed in 2019-2021 whether inmates have constitutionally protected liberty interests for timely application of time credits for programs and activities successfully completed under the First Step Act. This is a big red flag.

The Biden Administration, by and through, Attorney General Merrick Garland, has not changed the disparate time credits system put in place by the Trump administration, by and through Attorney General William Barr. A full nine months later, that suggests that no Directives or Rule changes are planned by Attorney General Merrick.

Thousands (if not tens of thousands) of inmates will be released from BOP custody in the period 2019-2021 without having received benefit from any First Step Act earned time credit incentive programming time reductions posted to their time accounts.

These abuses, pivots & dumps fly in the face of substantive First Step Act provisions, the intent of Congress, prison reform, and criminal justice reform. The provocative nature of these failures will ultimately discourage incentive programming, for failure of incentive. What happened to 2019-2021 incentive programming credits awarded, but not applied, where did they go? Where's the incentive? Where is Justice right now?

If the BOP is not mandated to apply awarded time credits until after January 15, 2022, who is to say that the BOP will not later argue that only programs and activities completed after January 15, 2022 apply?

Senator Dick Durbin (D-IL) was the primary Author of the Fist Step Act and remains its champion to this day. Senator Durbin can only do so much, and always publishes his activities online. You are encouraged to send Senator Durbin your support and praise for his tireless efforts that continue to this day.



Minority Opinion #1: O'Bryan v. Cox, CIV 21-4052, .D.SD (September 1, 2021).

Minority Opinion #2: Goodman v. Ortiz, Civ. No. 20-7582 (RMB), D. NJ (August 25, 2020).

The O'Bryan and Goodman decisions are proof that timely application of incentive programming time credits earned from 2019-2021 is possible, albeit an uphill battle.

We are hopeful that in the next six months more individual districts will follow the sound logic delineated in these two minority district court opinions of major importance. The O'Bryan decision makes certain First Step Act provision findings, as a matter of law, and is PRICELESS for that reason. O'Bryan breaks new ground by exposing BOPs semantics, e.g. constant use of the word "may" when referring to its authority as "discretionary", but not "mandatory". We think that O'Bryan is both a landmark case and hallmark opinion.


For further information please contact Federal Sentencing Alliance on this Site or Interrogating Justice through its Site at

Interrogating Justice-

Please also visit Interrogating Justice Website for a fantastic array of think tank breaking news articles regarding prison reform and criminal justice reform.

"Interrogating Justice specifically focuses on four longstanding failures by the criminal justice system:

  • the failure to hold governmental actors accountable,

  • the failure to ensure fairness in sentencing,

  • the failure to meaningfully consider reentry, and

  • the failure to provide access to justice for all."

Related Publications-

For further information regarding time credit disparities and application failures, see our new book titled: 'First Step Act- Pre-Release Earned Time Credit Programs & Activities: Bureau of Prisons Efforts to Undermine Incentive Programming, 2019-2022' available on Amazon with free Prime delivery HERE. This publication has been specially priced at $5.00 to make the information contained therein more widely available to the public.

Please see other Federal Sentencing Alliance First Step Act publications available on Amazon.

The opinions expressed above are the opinions of the Author, Federal Sentencing Alliance, considering the many issues presented, upon which, reasonable minds may differ. This information is provided to provoke critical thinking related to the issues identified, only. Nothing in this Post constitutes legal advice and any such interpretation by the reader is completely unintended. Federal Sentencing Alliance is not a law firm, and does not give legal advise; nor can it do so. You are advised to seek competent legal counsel to discuss the specific facts of your case.

© 2021 Federal Sentencing Alliance

© 2021 Federal Sentencing Alliance (Photo - Original Oil Painting by Alex Yost, Miami)

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