Explainer: Unanswered Questions About FSA Time Credits

Explainer: Unanswered Questions About FSA Time Credits

Between How to Justice and Interrogating Justice, we get a lot of questions about First Step Act (FSA) time credits.

On the How to Justice side of things, we’ve published articles about how courts treat lawsuits over FSA time credits, about things you can do if the BOP doesn’t calculate your FSA time credits correctly and about how the BOP should be counting FSA time credits.

On the Interrogating Justice side of things, we’ve published articles about how courts continue botching opportunities to hold the BOP accountable and about how the BOP has refused to award FSA time credits for participation in the MINT Program.

For all of the questions about FSA time credits we’ve tried to answer, though, countless more remain unanswered. Most of those, however, have three things in common.

First, almost every question we get about FSA time credits comes from someone on home confinement or someone with a loved one in a BOP facility who hasn’t received all of the FSA time credits they’ve earned.

Second, almost every question we get about FSA time credits comes from someone who has already asked BOP staff for help but was told by a case manager or other staff member that they simply do not know much of anything about FSA time credits.

Finally, almost every question we get about FSA time credits ends in the same way: “What do I do to get the FSA time credits I’ve earned?”

Anyone who has been following the BOP’s implementation of FSA time credits knows the answer to that question is the most frustrating answer we could possibly give: We don’t know.

Image courtesy of Alberto Gagliardi via Getty Images.

Should you file a grievance for missing FSA time credits?

Maybe. You can always use your facility’s grievance process to challenge the BOP’s calculation of FSA time credits. Whether that process will prove successful, however, is another issue. In our experience, the BOP rarely if ever recalculates FSA time credits based on grievances.

But, if you want to challenge the BOP’s calculation of FSA time credits in court, it’s crucial that you exhaust your administrative remedies first. Otherwise, a federal judge can dismiss your lawsuit without considering the merits of your claim.

Should you file a lawsuit for missing FSA time credits?

Maybe. In the past few months, some courts have finally pushed back against the BOP’s haphazard approach to FSA time credits.

First, in a case called Dyer v. Federal Bureau of Prisons, a federal judge in Tennessee required the BOP to apply FSA time credits to a term of supervised release since it took to long to apply them to the prisoner’s time in prison and on home confinement.

Second, in a case called Stewart v. Snyder, a federal judge in Alabama required the BOP to recalculate FSA Time Credits every 60 days to make sure it was releasing people on time.

But not every court has approached cases involving FSA time credits the same. Just a couple of weeks ago in a case called Alcaras v. Thompson, ruled that a habeas petition under 28 U.S.C. § 2241 — the method federal courts tell incarcerated people to use to challenge time-credit calculations — challenging the BOP’s calculation of FSA time credits “fails to state a claim upon which relief can be granted because the Bureau of Prisons (BOP) hassle discretion to place an inmate in end-of-sentence transition programs.”

As these three cases demonstrate, it’s impossible to predict how a federal court will handle a lawsuit over FSA time credits. Some judge may order the BOP to apply the time credits you’ve earned immediately. Others may refuse to do anything at all.

Image courtesy of eric1513 via Getty Images.

If those options don’t work, what else is there I can do?

Beyond using the grievance process or filing a lawsuit, there is not many other clear options to challenge the BOP’s calculation of FSA time credits at this time. You can always informally ask BOP staff for help. But, especially if they deny knowing anything about it, there is no guarantee that doing so will help.

You can also just wait. It’s fairly ordinary for the BOP staff to wait until the last minute to do what they need to do. After all, that’s exactly how they handled the implementation of FSA time credits. So, if you’re still several months or a year or more away from your release date, it may be in your best interests to simply wait until closer to your release date to proactively ask the BOP to apply FSA time credits.

The Takeaway:

If you’re on home confinement or have a loved one in a BOP facility, you’re probably wondering what to do if the BOP doesn’t calculate your or their FSA time credits correctly. Even though it’s been almost four years since Congress passed and former President Donald Trump signed the First Set Act into law, we still don’t have a clear answer to this question.

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