If you’re in BOP custody — at a prison camp or on home confinement — you already know about First Step Act (FSA) Time Credits. You know that you can earn 10 (and sometimes even 15) Time Credits for every 30 days of participation in programs and activities. And you also know that the BOP recently started applying those Time Credits. But, if the BOP hasn’t applied yours yet, what do you need to do to file a lawsuit asking a federal court to apply your FSA Time Credits?
Can you file a habeas lawsuit for FSA Time Credits?
Yes. More than 100 people in BOP custody have already filed a petition for a writ of habeas corpus in hopes of getting a federal court to apply FSA Time Credits. In all but two cases (Goodman v. Ortiz and O’Bryan v. Cox), however, federal courts have dismissed these petitions. There are usually two reasons for these dismissal. First, the petitioners didn’t exhaust their administrative remedies. Second, courts are reluctant to review the BOP’s decision-making on calculating and applying FSA Time Credits.
But that doesn’t mean that every habeas petition will be unsuccessful. In the decision in Goodman v. Ortiz, for example, a federal judge held that a BOP prisoner was “entitled to habeas relief” in the form of FSA Time Credits. Specifically, the court ordered “the BOP to immediately apply Petitioner’s Earned Time credit of 120 days….” Other courts could do that, too. To file a petition for a writ of habeas corpus, you can use this form on the United States Courts website.
What do you need to do to be able to file such a lawsuit?
The most important thing you need to do before filing a lawsuit for FSA is exhaust your administrative remedies. As you probably know, the BOP has a four-step grievance process. First, you must seek information resolution with BOP staff. If that doesn’t work, you must file a formal grievance with the warden with a “BP-9” form. If that doesn’t work, then you must appeal the formal grievance to the Regional Director with a “BP-10” form. Finally, if that doesn’t work, you must appeal again by submitting a “BP-11” form to the General Counsel of the Central Office.
While there are exceptions to this exhaustion requirement, courts rarely allow them. In Goodman v. Ortiz, for example, the judge held that the petition was “exempt from the exhaustion requirement” because the case “present[ed] a narrow dispute of statutory construction[.]” The judge also recognized legal precedent that states that “exhaustion is not required when the petitioner demonstrates that it is futile.” But that is just one FSA Time Credits lawsuit out of more than a hundred where judges ruled the other way.
You can file a petition for writ of habeas corpus to ask a federal court to apply your FSA Time Credits. But, if you don’t go through the BOP’s grievance process first, the court will probably dismiss your petition. More than a hundred courts have already done that over the past two years.