1:22-cv-02371-DKC) WILLIAM A. WHITE v. Warden of Federal Correctional Institution - Cumberland

FILED: April 22, 2026
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-7116
(1:22-cv-02371-DKC)
WILLIAM A. WHITE,
Petitioner - Appellant,
v.
WARDEN OF FEDERAL CORRECTIONAL INSTITUTION - CUMBERLAND,
Respondent – Appellee.
O R D E R
The Court denies the petition for rehearing and rehearing en banc. No judge
requested a poll under Fed. R. App. P. 40.
Judge Wilkinson and Judge Niemeyer voted to deny the petition for panel rehearing.
Judge King voted to grant the petition for panel rehearing.
For the Court
/s/ Nwamaka Anowi, Clerk

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NIEMEYER, Circuit Judge, with whom Judge WILKINSON joined, denying the motion
for panel rehearing:
William White, the petitioner in this habeas case, has come forward with new
information that he claims should justify our withdrawing the opinion we issued in this
case. Nonetheless, we vote to deny his motion for panel rehearing.
Based on the record in this case, we concluded in our opinion that White was not
entitled to First Step Act time credits for the three-day period he was held at the Federal
Transfer Center Oklahoma City because he did not, during that time, “participate” in
recidivism reduction programming, much less “successfully complete[]” such
programming, as required to earn First Step Act time credits. See 18 U.S.C. § 3632(d)(4).
Indeed, the government stated that such programming was not offered to prisoners in transit
centers, and particularly to a prisoner assigned to a Special Housing Unit, as White was for
security reasons during that three-day period.
Judge King would opt to begin this habeas proceeding all over again — after more
than three years of litigation — because White now claims that he met a psychologist while
in the Transfer Center, who provided him with some materials. He argues that this could
be considered participation in recidivism reduction programming. While this new factual
claim would hardly satisfy the First Step Act requirements, his new information and
argument are totally inconsistent with the position that White has consistently taken
throughout this litigation up to now. The habeas record supports only the conclusion that
White was never given recidivism reduction programming at the Transfer Center so as to
enable him to earn time credits.

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In his pro se habeas petition, White claimed that while in the Transfer Center, he
was confined, without due process, to a Special Housing Unit (sometimes “SHU”) where
no programming was offered and that therefore he was denied “the ability to earn credits.”
(Emphasis added). He thus argued that the lack of due process in confining him to the
SHU “permitted [the BOP] to impose loss of [time credits] as a collateral consequence of
SHU confinement without Due Process. . . . [The BOP] had to either give me programming
and [time credits] or not place me in SHU at all.” White thereupon concluded that “[his
placement in the SHU] . . . cost him the ability to earn [time credits] without any due
process.” (Emphasis added).
After counsel was appointed for White, White’s counsel continued to press the same
position taken by White, arguing:
But it is fundamentally unfair to deny White FSA time credits when it’s the
BOP’s flaunting of its statutory obligation to provide [recidivism reduction
programming] in all facilities during the entirety of an individual’s
incarceration that caused the unavailability of programming.
(Emphasis added).
And White’s position was consistent with the government’s position that the BOP
did not offer recidivism reduction programming to prisoners while at the Transfer Center,
and, in particular, to prisoners confined in a Special Housing Unit.
Finally, the district court, reviewing the habeas record, found:
Accordingly, while housed at SHU while in transfer status at FTC-Oklahoma
City . . . Mr. White was prevented from earning [First Step Act time credits].
(Emphasis added).

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As reflected by this record, White took the position and maintained it throughout
this three-year litigation that confining him to a Special Housing Unit without due process
denied him the ability to earn First Step Act credits because no programming was offered
there. Moreover, during these years, he had numerous opportunities to come forward with
any correction of that position, but he did not do so. The information he now presents to
us is thus not only new, but inconsistent with the information he provided to us over the
years, including while represented by counsel.
For these reasons, we opt to stand with the opinion that we issued and which still,
we conclude, properly denies White First Step Act time credits because he failed to
“participate” in and “successfully complete” recidivism reduction programming, as
required by the First Step Act to earn credits, during the three days he spent at Federal
Transfer Center Oklahoma City.

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KING, Circuit Judge, dissenting from the denial of panel rehearing:
In this matter, petitioner William A. White challenges the district court’s rejection
of his statutory and constitutional claims alleging the wrongful denial of a single time credit
under the First Step Act of 2018 (the “FSA”) relating to three days he spent in the Federal
Transfer Center (“FTC”) at Oklahoma City, Oklahoma. Over my dissent, our Court’s panel
majority affirmed. See White v. Warden of Fed. Corr. Inst. – Cumberland, 164 F.4th 326
(4th Cir. 2026). With respect to the statutory claim, the majority relied on a theory that
only actual participation qualifies as “successful participation” under the plain text of the
FSA, see 18 U.S.C. § 3632(d)(4), and that White did not actually participate in
programming at FTC-Oklahoma City because no programming was provided to him during
his short stint there.
Among the flaws in the majority’s actual participation theory that I identified and
discussed in my dissent are that (1) the government waived the theory by failing to raise it
in the district court and (2) the theory lacked factual substantiation. See White, 164 F.4th
at 339-40 (King, J., dissenting). As I explained, the government having relied on a wholly
different theory in the district court — i.e., that a Bureau of Prisons (“BOP”) regulation
had rendered White categorically ineligible to earn FSA time credits at FTC-Oklahoma
City due to his so-called “transfer status,” as well as his assignment to a special housing
unit (the “SHU”) — the parties understandably did not present evidence on the then-
irrelevant topic of whether programming was or was not available to White at FTC-
Oklahoma City. Id. at 340.

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It was not until this appeal that the government raised the actual participation theory,
in its response brief. Even then, the government offered only uncorroborated and equivocal
assertions that programming is not — or “is not necessarily” — offered at FTC-Oklahoma
City and other federal transfer centers. See White, 164 F.4th at 340 (King, J., dissenting)
(quoting Br. of Appellee 19). In reply, a blindsided White emphasized the lack of relevant
evidence and “rightfully request[ed], ‘at minimum, reversal and remand’ for factual
development.” Id. at 340 n.4 (quoting Reply Br. of Appellant 8). Nevertheless, the
majority disregarded White’s remand request, excused the government’s waiver, and took
the government at its word that White was not provided and thus did not participate in any
programming at FTC-Oklahoma City.
White has now filed a petition for panel rehearing and rehearing en banc, attaching
not only a declaration executed under penalty of perjury in which he swears that he was
provided and actually participated in programming at FTC-Oklahoma City, but also a
corroborating BOP record. See White v. Warden of Fed. Corr. Inst. – Cumberland, No.
23-7116, at 21-22 (4th Cir. Feb. 23, 2026), ECF No. 43. Specifically, the declaration states
— and the BOP record corroborates — that upon White’s arrival at FTC-Oklahoma City,
he “met with a psychologist [who] provided [him] with the workbooks for the [BOP]’s
Evidence-Based Recidivism Reduction (EBBR) Trauma and Criminal Thinking programs,
which [he] completed at the transfer facility.” Id. The declaration confirms that White,
who had initially proceeded pro se, “did not mention [his FTC-Oklahoma City
programming] in [his] pro se pleadings before the district court because the government
only ever objected to [his statutory claim for an FSA time credit] on the ground that [he]

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was ineligible due to [his] transfer status, not due to any lack of participation.” Id. at 21.
Further, the declaration specifies that “[i]f the government had argued that [White] failed
to sufficiently allege participation, [he] would have amended [his] habeas petition to plead
the participation described above and/or would have provided evidence to the [district
court] of this participation.” Id.
In its response to White’s rehearing petition, the government has no good answer to
White’s declaration and the corroborating BOP record. See White v. Warden of Fed. Corr.
Inst. – Cumberland, No. 23-7116, at 11-14 (4th Cir. Mar. 12, 2026), ECF No. 46. Rather,
the government gripes that the BOP record is partially redacted and does not irrefutably
show that the materials provided to White at FTC-Oklahoma City “constitute approved,
qualifying FSA programming.” Id. at 12-14. The government also accuses White of
seeking to improperly expand the record, in contravention of Rule 10 of the Federal Rules
of Appellate Procedure. Id. at 11-12. Quite brazenly, the government asserts that “[t]he
mere fact that [White’s] litigation strategy evolved between the record below and the
arguments on appeal does not permit him to introduce new factual information that was
available at the time he filed his [habeas petition].” Id. at 12. Of course, White is just now
proffering his declaration and the corroborating BOP record not because of a change in his
litigation strategy, but because of the government’s change in its litigation strategy.
Based on White’s declaration and the corroborating BOP record, I have urged the
majority to join me in granting panel rehearing, vacating the prior decision, and remanding
for the district court to consider the evidence of White’s FTC-Oklahoma City programming
in the first instance. Regrettably, however, my distinguished colleagues stubbornly refuse

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to do so and continue to condone the government’s very troubling and unfair conduct in
this matter.
The majority seeks to justify its denial of panel rehearing by summarily declaring
that the activities described in White’s declaration and the corroborating BOP record
“would hardly satisfy the [FSA] requirements.” See ante 1. Additionally, the majority
rewrites history, asserting that White claimed from the start of the district court proceedings
to be aggrieved by a lack of programming at FTC-Oklahoma City, and that the government
promptly responded with the actual participation theory. As the majority would thus have
it, White’s “new information and argument are totally inconsistent with the position that
White has consistently taken throughout this litigation up to now.” Id.
For support, the majority cherry-picks quotations from White’s pro se habeas
petition, his appellate reply brief, and the district court’s opinion. Meanwhile, the majority
quotes nothing from the government’s district court pleadings. I have carefully reviewed
all those documents and can confidently say that, under any fair reading of them, none
substantiates the majority’s version of events.
First of all, White’s habeas petition neither alleges that he was provided no
programming at FTC-Oklahoma City nor blames a lack of programming for the challenged
FSA time credit denial. Rather, the petition clearly ties the denial to White’s categorical
ineligibility under the BOP regulation, regardless of the availability of programming.
Indeed, the petition specifies that the BOP regulation rendered White categorically
ineligible to earn time credits “even if I program,” belying any notion that White was
alleging or complaining of a lack of programming. See J.A. 8-9 (emphasis added)

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(explaining that “[w]hen not [subject to the BOP regulation], I earn 10 days of [time credits]
for every 30 days I’m imprisoned as long as I do not refuse programming,” but “[w]hen
[subject to the BOP regulation], I earn 0 days, even if I program”).
For their part, the government’s district court pleadings in no way raise and preserve
the actual participation theory. Those pleadings fail to state, inter alia, that programming
is unavailable at federal transfer centers, that no programming was provided to White at
FTC-Oklahoma City, or that White was denied the sought-after FSA time credit because
of a lack of programming or failure to actually participate.
As for the district court’s opinion, the language quoted by the majority merely says
that “Mr. White was prevented from earning [FSA time credits at FTC-Oklahoma City].”
See White v. Warden of Fed. Corr. Inst. – Cumberland, No. 1-22-cv-02371, at 3 (D. Md.
July 31, 2023), ECF No. 12 (emphasis added). Importantly, that language does not say that
White was prevented from earning FSA time credits by a lack of programming. Rather,
the quoted language is part of a larger passage in which the opinion describes White’s
argument as being that he was prevented from earning FSA time credits by the BOP
regulation. Under the heading “The Positions of the Parties,” the opinion states:
Mr. White explains that, pursuant to [the BOP regulation], federal inmates
are guaranteed to earn [FSA time credits] throughout their incarceration,
except in several circumstances, including while an inmate is housed in the
SHU. Accordingly, while housed in SHU while in transfer status at FTC-
Oklahoma City, . . . Mr. White was prevented from earning [FSA time
credits].
Id. at 2-3 (citation omitted). The balance of the opinion confirms that, in the district court,
it was understood by all involved — White, the government, and the court itself — that the

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parties’ dispute was over the applicability and enforceability of the BOP regulation, not the
availability of programming.
Finally, White’s appellate reply brief firmly maintains that because of the
government’s failure to raise the actual participation theory until this appeal, the
availability of programming was never at issue in the district court. See, e.g., Reply Br. of
Appellant 3 (arguing that the actual participation theory “should not even be considered,
as it is brand new, differs from the argument and reasoning below, and relies on facts not
in the record”). Far from conceding a lack of programming, the reply brief emphasizes the
absence of relevant evidence and addresses the legal implications “if” no programming was
provided to White. See, e.g., id. at 8 (underscoring that “[t]here is no evidence in the record
about White’s supposed failure to participate in [programming] while in the FTC, nor the
availability of programming at the FTC”); id. at 12 (contending that “[i]f White did not
participate in [programming] in the FTC, that is because BOP violated its statutory
obligation to provide programming”).
In these circumstances, it is entirely appropriate and reasonable that White is just
now presenting evidence — with his petition for panel rehearing and rehearing en banc —
demonstrating that he was provided and did actually participate in programming at FTC-
Oklahoma City. What is not justified is the majority’s refusal to grant panel rehearing,

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vacate our prior decision, and remand for the district court to consider White’s evidence in
the first instance. I therefore dissent.*
* To be clear, I have not requested a poll on rehearing en banc in this matter, but I
believe it likely that our en banc Court will need to revisit the panel majority’s opinion in
a future case. As I said in my earlier dissent, the majority’s ruling on the merits of White’s
statutory claim “does not just flout the plain text of the FSA and the BOP’s policies and
practices,” but “also threatens chaos, unequal treatment, and other unfairness in the FSA
time credit system.” See White, 164 F.4th at 342 (King, J., dissenting). Additionally,
White’s rehearing petition alleges serious errors in the majority’s ruling on his separate
constitutional claim, which I did not address in my dissent because I would have granted
relief on the statutory claim. See id. at 335 n.1 (invoking the constitutional avoidance
doctrine under Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring)).

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