Christopher Thieme v. WARDEN FORT DIX FCI On Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 23-1697
____________
CHRISTOPHER THIEME,
Appellant
v.
WARDEN FORT DIX FCI
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1:20-cv-14835)
District Judge: Honorable Christine P. O’Hearn
____________
Argued on July 9, 2025
Before: KRAUSE, MATEY, and PHIPPS, Circuit Judges
(Filed: October 8, 2025)
____________

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Tadhg Dooley
David R. Roth
WIGGIN & DANA
One Century Tower
265 Church Street
New Haven, CT 06510
Riley Gordon
Sharon Nunn
Kevin Yang [ARGUED]
YALE LAW SCHOOL
127 Wall Street
New Haven, CT 06511
Court Appointed Amicus Curiae Counsel
Paul T. Crane [ARGUED]
UNITED STATES DEPARTMENT OF JUSTICE
APPELLATE SECTION
Room 7323
950 Pennsylvania Avenue NW
Washington, DC 20530
John T. Stinson, Jr.
OFFICE OF UNITED STATES ATTORNEY
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101
Counsel for Appellee

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_______________________
OPINION OF THE COURT
_______________________
PHIPPS, Circuit Judge.
A federal statute allows good conduct time credit of up to
54 days each year for persons serving federal sentences. In this
case, a federal inmate with a seventeen-and-a-half-year
sentence asserts that after the First Step Act of 2018 amended
the statute, he became eligible for 54 days of good conduct time
credit not only for each full year of his sentence but also for the
last six months of his sentence. See First Step Act of 2018,
Pub. L. No. 115-391, tit. I, § 102(b)(1), 132 Stat. 5194, 5210
(codified at 18 U.S.C. § 3624(b)(1)). Instead of allowing the
possibility of a full 54 days of good conduct time credit for the
last six months, the Federal Bureau of Prisons, commonly
referred to as the ‘BOP,’ has interpreted the statute as amended
by the First Step Act to require prorating the good conduct time
credit on a daily basis for that time period. Using that method,
the BOP calculated that the prisoner would be eligible for 26,
not 54, days of credit for the last six months of his sentence.
To obtain the additional 28-day credit, the inmate petitioned
for a writ of habeas corpus, and the District Court denied that
petition. On de novo review of that pure question of law, we
will affirm the order of the District Court.
STATUTORY & REGULATORY CONTEXT
Since 1867, federal prisoners have been statutorily eligible
for reduced sentences based on their good conduct while
incarcerated.1 The modern system for granting prisoners such
1 See U.S. Parole Comm’n, History of the Federal Parole
System 5 (2003), https://www.justice.gov/sites/default/
files/uspc/legacy/2009/10/07/history.pdf

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good conduct time credit began with the enactment of the
Sentencing Reform Act of 1984.2 Under that legislation,
federal prisoners were eligible for a good conduct time credit
“of fifty-four days at the end of each year of [their] term of
imprisonment.” Pub. L. No. 98-473, tit. II, ch. II, 98 Stat.
1987, 2008–09 (codified as amended at 18 U.S.C.
§ 3624(b)(1)). That credit was withheld if “the Bureau of
Prisons determine[d] that, during that year, [a prisoner] ha[d]
not satisfactorily complied with . . . institutional disciplinary
regulations,” and any such credit would be “prorated” for the
“last year or portion of a year of the term of imprisonment.”
Id. at 2009. The legislation further provided that any proration
had to be credited “within the last six weeks of the sentence.”
Id. An amendment by the Violent Crime Control and Law
Enforcement Act of 1994 made good conduct time credit
“subject to determination by the Bureau of Prisons that, during
that year, the prisoner has displayed exemplary compliance
with such institutional disciplinary regulations.” Pub. L.
No. 103-322, tit. II, subtitle D, § 20405, 108 Stat. 1796, 1825–
[https://perma.cc/46MK-VFSB]; see also Thomas G.
Blomberg & Karol Lucken, American Penology: A History of
Control 75 (2010) (describing how “the concept of release for
good behavior” has been around since the 1850s).
2 Before enactment of the Sentencing Reform Act of 1984, the
rate at which a federal prisoner was eligible for good conduct
time credit depended on the length of his or her sentence. See
18 U.S.C. § 4161 (1982) (repealed 1984); Fields v. Keohane,
954 F.2d 945, 947 (3d Cir. 1992) (explaining that the
maximum available good conduct time credit varied depending
on the length of the sentence). See generally Brent E. Newton
& Dawinder S. Sidhu, The History of the Original United
States Sentencing Commission, 1985-1987, 45 Hofstra L. Rev.
1167, 1169, 1169–87 (2017) (describing how the Sentencing
Reform Act of 1984 “ushered in . . . profound changes to the
federal criminal justice system”).

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26 (codified as amended at 18 U.S.C. § 3624(b)(1)). It also
added the phrase ‘up to’ before ‘54 days’ but retained the root
term ‘prisoner’s term of imprisonment,’ as well as the
proration provision. Id. at 1826. But even with that
amendment and another in 1996,3 the statute had a critical
ambiguity: it was unclear if the root term, ‘prisoner’s term of
imprisonment,’ referred to the initially imposed prison term or
to the actual prison term served, which may be less than the
initial term based on earned good conduct time credit.
The Supreme Court resolved that ambiguity in Barber v.
Thomas, 560 U.S. 474 (2010). It did so by evaluating “[t]he
statute’s language and its purpose, taken together[.]” Id. at
480. As far as the statutory text, the Supreme Court focused
on the provisions stating that good conduct time credit would
be awarded “at the end of each year” and that any such award
would be subject to the BOP’s determination that “during that
year” the inmate behaved in an exemplary fashion. Id.
(emphasis removed) (quoting 18 U.S.C. § 3624(b)(1) (2006)).
From there, the Supreme Court reasoned that the statute’s
purpose was to implement “a system of retrospective award,”
not “prospective entitlement.” Id. at 481 (citation omitted).
Based on that analysis, the Supreme Court held that good
conduct time credit was available only for the term of
imprisonment actually served by the prisoner – not for the term
of imprisonment imposed by the sentencing judge. Id. at 480–
83. Thus, 54 days of good conduct time credit could be
awarded “for each full year of imprisonment that [a prisoner]
3 See Prison Litigation Reform Act of 1995, Pub. L. No. 104-
134, tit. VIII, § 809(c), 110 Stat. 1321, 1321–76 (1996)
(extending good conduct time credit to prisoners sentenced for
crimes of violence and directing the BOP to consider, in
making its determination, whether a prisoner is making
progress toward earning a high school diploma or its
equivalent).

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serves and a proportionally adjusted amount of credit for any
additional time served that is less than a full year.” Id. at 480.
The First Step Act of 2018 amended the statutory
provisions regarding good conduct time credit in several
respects. That legislation removed text to transform the root
term ‘prisoner’s term of imprisonment’ into ‘prisoner’s
sentence.’ First Step Act of 2018, Pub. L. No. 115-391, tit. I,
§ 102(b)(1)(A)(i), 132 Stat. 5194, 5210 (codified at 18 U.S.C.
§ 3624(b)(1)). And the phrase ‘at the end of each year’ was
revised to read ‘for each year.’ Id. With that change to ‘for
each year,’ the First Step Act deleted the term ‘prorated’ and
other language regarding the proration process, such as the
phrase ‘portion of a year’ and the specification that the credit
be awarded ‘within the last six weeks of the sentence.’ Id.
Altogether, after the First Step Act amendments, which are
visualized below, good conduct time credits were not purely a
retrospective reward but rather took on some attributes of a
prospective entitlement, albeit one subject to BOP review:
Subject to paragraph (2), a prisoner who is
serving a term of imprisonment of more than
1 year other than a term of imprisonment for the
duration of the prisoner’s life, may receive credit
toward the service of the prisoner’s sentence,
beyond the time served, of up to 54 days at the
end of for each year of the prisoner’s term of
imprisonment, beginning at the end of the first
year of the term sentence imposed by the court,
subject to determination by the Bureau of Prisons
that, during that year, the prisoner has displayed
exemplary compliance with institutional
disciplinary regulations . . . . Subject to
paragraph (2), credit for the last year or portion
of a year of the a term of imprisonment shall be
prorated and credited within the last six weeks of

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the sentence on the first day of the last year of
the term of imprisonment.
18 U.S.C. § 3624(b)(1) (strikethroughs representing deletions
and emphases representing additions made by the First Step
Act, tit. I, § 102(b)(1)(A)(i), 132 Stat. at 5210).
In response to those amendments, the BOP published a
notice of proposed rulemaking on December 31, 2019, with a
revised method for calculating good conduct time credit. Good
Conduct Time Credit Under the First Step Act, 84 Fed.
Reg. 72,274, 72,274 (Dec. 31, 2019). See generally 5 U.S.C.
§ 553(b) (setting forth the process for proposing agency rules).
Under that new approach, the BOP would calculate credit “for
each year of the sentence imposed by the court, instead of for
each year of actual time served.” Good Conduct Time Credit
Under the First Step Act, 84 Fed. Reg. at 72,274. And when
the last increment of the sentence is for a portion of a year, the
BOP would prorate good conduct time credit at the rate of
0.148 credits per day (0.148 is the maximum 54 days of credit
divided by 365 days in a year). Id. at 72,276 & n.5. By the
comment deadline of March 2, 2020, the BOP received
74 comments, and after considering those, it promulgated a
final rule, effective March 14, 2022, formally implementing
the proposed methodology. Good Conduct Time Credit Under
the First Step Act, 87 Fed. Reg. 7,938, 7,938 (Feb. 11, 2022)
(codified at 28 C.F.R. pt. 523).
FACTUAL & PROCEDURAL BACKGROUND
On December 19, 2016, then-thirty-six-year-old
Christopher Thieme began serving a 210-month sentence for
the use of interstate commerce facilities in the commission of
murder-for-hire, see 18 U.S.C. § 1958(a), and attempted
kidnapping, see id. § 1201(a), (d). When Thieme was
sentenced, the maximum good conduct time credit available to
him was 823 days. But on April 25, 2020, after the enactment
of the First Step Act and the publication of the BOP’s notice of

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proposed rulemaking, the BOP recalculated Thieme’s potential
credits and determined that he would be eligible for 944 days
of good conduct time credit. That revised calculation prorated
the good conduct time credit for the last six months of
Thieme’s sentence, and, after rounding down fractions of a
day, set the credit at 26 days for that period. Cf. Good Conduct
Time Credit Under the First Step Act, 87 Fed. Reg. at 7,940 n.3
(“[I]t is the Bureau’s convention to round down any partial day
of [good conduct time credit] to the nearest whole number.”).
Thieme disagreed with the proration of the good conduct
time credit for the final six months of his sentence. Cf. Good
Conduct Time Credit Under the First Step Act, 84 Fed. Reg. at
72,275 (considering but rejecting an interpretation of the First
Step Act amendments under which “an inmate [would] earn[]
54 days of credit each year, and, on the first day of the last
chronological year of the service of his/her sentence, earn[]
another 54 days”). Without prorating the final six months of
his sentence, Thieme would be eligible for 972, not 944, total
days of good conduct time credit, resulting in a potential
release 28 days earlier than under the BOP’s calculation.
To contest that extended confinement period, Thieme,
while incarcerated at Federal Correctional Institution Fort Dix,
filed a pro se petition for a writ of habeas corpus under
28 U.S.C. § 2241 with the District Court on October 22, 2020.
See Preiser v. Rodriguez, 411 U.S. 475, 487–88 (1973)
(explaining that a challenge to good conduct time credits that
would “shorten[] the length of . . . confinement, rather than
require[] immediate discharge from that confinement,” would
be within “the core of habeas corpus in attacking the very
duration of . . . physical confinement itself”); see also
28 U.S.C. § 2241(c)(3) (allowing persons “in custody in
violation of the Constitution or laws or treaties of the United
States” to petition for a writ of habeas corpus under § 2241).
His challenge was primarily to the BOP’s interpretation of the
First Step Act amendments that resulted in a proration of the

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good conduct time credits for the last six months of his
sentence. He amplified his argument by asserting that the
BOP’s interpretation violated his due process rights and the
Administrative Procedure Act, codified as amended at
5 U.S.C. §§ 551–559, 701–706. He further asserted that a
court applying Chevron deference to the BOP’s interpretation
would offend separation of powers principles.
The District Court denied Thieme’s petition. Thieme v.
Ortiz, 2023 WL 2706757, at *1 (D.N.J. Mar. 30, 2023). It
rejected Thieme’s APA claims on the ground that the
Sentencing Reform Act of 1984 precludes challenges to
agency “determination[s], decision[s], or order[s]” related to
the BOP’s individualized calculations of a prisoner’s potential
release date. Id. at *2 (quoting 18 U.S.C. § 3625). And as to
Thieme’s remaining challenge to the BOP’s construction of the
statute, the District Court explained that “the plain language of
§ 3624(b)(1) clearly and unambiguously allows for
proration[.]” Id. at *5. As an alternative to its plain-language
rationale, the District Court relied on Chevron deference to
uphold the BOP’s interpretation of the revised statute. Id.
Through a timely notice of appeal, Thieme invoked this
Court’s appellate jurisdiction. See 28 U.S.C. § 1291. In a
thoughtful, well-composed pro se brief, he argued that the
District Court erred in several respects by upholding the BOP’s
proration of his good conduct time credit.4 After the initial
4 Apart from his proration challenges, Thieme also contends
that even if the BOP is permitted to prorate, it is not permitted
to round down the number of days he can be credited. That,
however, is a separate claim, and Thieme raised it for the first
time in his reply brief in the District Court. Without Thieme
raising the argument in his petition or moving to amend his
petition to include that argument, it has not been preserved.
See Woodford v. Garceau, 538 U.S. 202, 208 (2003)
(explaining that a habeas petition functions much like a

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briefing closed, this Court entered an order appointing amicus
curiae counsel to further address those and related issues,5 and
permitting amicus and the Government to file supplemental
briefs.6
complaint in a typical civil case); Gov’t Emps. Ins. Co. v.
Mount Prospect Chiropractic Ctr., P.A., 98 F.4th 463, 472
(3d Cir. 2024) (“[A] ‘complaint may not be amended by the
briefs in opposition to a motion to dismiss.’” (quoting
Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d
173, 181 (3d Cir. 1988))); Josey v. John R. Hollingsworth
Corp., 996 F.2d 632, 641–42 (3d Cir. 1993) (refusing to
consider a claim that was not raised in a complaint or through
amendment, concluding that “[t]his court will not weaken the
district court’s control over its own docket by requiring a
relaxation of pleading requirements”); see also Fed. R. Civ.
P. 81(a)(4) (providing that the Federal Rules of Civil
Procedure “apply to proceedings for habeas corpus and for quo
warranto to the extent that the practice in those proceedings . . .
is not specified in a federal statute, the Rules Governing
Section 2254 Cases, or the Rules Governing Section 2255
Cases”).
5 The Court expresses gratitude for the pro bono services
provided by appointed counsel, in particular to Sharon Nunn,
Riley Gordon, and Kevin Yang of the Yale Law School
Advanced Appellate Litigation Project, for their commendable
advocacy.
6 On March 4, 2025, during the pendency of this appeal, and
while he was incarcerated, a federal grand jury in the Northern
District of New York indicted Thieme on one count of
cyberstalking and three counts of making interstate threats to
injure another person. Those charges remain pending, and
Thieme has not pleaded guilty or been sentenced for them, so
those new charges have not mooted Thieme’s habeas petition.
See Chafin v. Chafin, 568 U.S. 165, 175 (2013) (“[U]ncertainty

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DISCUSSION
Section 2241 allows habeas petitions by persons “in
custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3). Here, Thieme
argues that he will be held in custody in violation of federal
law based on the BOP’s reading of the statute, 18 U.S.C.
§ 3624(b)(1), as amended by the First Step Act. His primary
challenge is to the District Court’s upholding of the BOP’s
interpretation of the statute, which prorates good conduct time
credits for a partial year. Thieme contests that construction of
the statute and contends that the good conduct time credits for
the final six months of his sentence should not be subject to
proration, such that he would be eligible for good conduct time
credit for 28 additional days. As adjuncts to his statutory
interpretation argument, Thieme also raises other challenges to
the District Court’s ruling: he argues that proration of his final
six months of good conduct time credits violates his
constitutional due process rights, the Administrative Procedure
Act, and, if the BOP’s interpretation receives Chevron
deference, then separation of powers principles as well.7
does not typically render cases moot. Courts often adjudicate
disputes where the practical impact of any decision is not
assured.”).
7 Thieme argues for the first time on appeal that the major
questions doctrine forecloses the BOP’s interpretation of the
First Step Act amendments, but without Thieme presenting that
argument in the District Court, it is not properly considered
now. See Gardner v. Grandolsky, 585 F.3d 786, 793 (3d Cir.
2009) (declining to consider an argument raised for the first
time on appeal that was not raised in a habeas petition). Also,
in its initial brief, which with leave of court it has since
supplemented, the BOP argued that Thieme was required to
administratively exhaust his challenge to the calculation of his
sentence. With Thieme validly presenting only statutory

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A. Thieme’s habeas petition reduces to a
challenge to the BOP’s interpretation of the
First Step Act amendments.
Thieme’s adjunct arguments are nonstarters. First, he does
not articulate a viable due process claim. The most prominent
cases he cites – Wolff v. McDonnell, 418 U.S. 539 (1974);
Young v. Kann, 926 F.2d 1396 (3d Cir. 1991); and Queen v.
Miner, 530 F.3d 253 (3d Cir. 2008) – are procedural due
process challenges to BOP adjudications that denied good
conduct time credits to individual prisoners based on their own
conduct.8 See Wolff, 418 U.S. at 543; Young, 926 F.2d at 1397;
Queen, 530 F.3d at 254 n.2. Yet Thieme’s due process
challenge targets the BOP’s rulemaking – not an alleged lack
of adjudicative procedure. Unlike adjudication, rulemaking
does not implicate procedural due process. See Vt. Yankee
Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S.
519, 542 n.16 (1978) (explaining that a “rulemaking
construction challenges, which are pure questions of law, the
BOP no longer makes that argument. Cf. Vasquez v. Strada,
684 F.3d 431, 433–34 (3d Cir. 2012) (holding that “a prisoner”
who files a habeas petition under 28 U.S.C. § 2241 “need not
exhaust administrative remedies where the issue presented
involves only statutory construction” (citing Bradshaw v.
Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981))).
8 The other cases that Thieme cites also have little bearing on
his specific challenge. For instance, Torres v. Fauver,
292 F.3d 141 (3d Cir. 2002), was not a case involving a habeas
petition; it presented a due process claim brought under
42 U.S.C. § 1983 based on a prison sanction, but the sanction
“did not revoke any good-time credits or otherwise affect the
fact or length of [the prisoner’s] confinement.” Id. at 142–43.
Likewise, Whalen v. United States, 445 U.S. 684 (1980), did
not involve a habeas petition or good conduct time credits; it
did not even present a due process claim but rather concerned
a successful double jeopardy challenge. Id. at 690.

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proceeding in its purest form” does not constitutionally require
“additional procedural devices”); compare Londoner v. City &
County of Denver, 210 U.S. 373, 385–86 (1908) (evaluating a
due process challenge to an adjudicatory proceeding), with Bi-
Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441,
445–46 (1915) (evaluating a due process challenge to
rulemaking). Accordingly, without challenging adjudicative
shortcomings, Thieme does not have a viable procedural due
process claim.
Thieme gets further with his APA claims, but they are still
not successful. The text of the APA allows challenges to
agency action to be brought in habeas petitions. 5 U.S.C.
§ 703; see also Gardner v. Grandolsky, 585 F.3d 786, 788,
790–93 (3d Cir. 2009) (deciding an APA claim against a BOP
regulation within a habeas petition). But the writ of habeas
corpus is a means of challenging “unlawful executive
detention” for which the “typical remedy . . . is . . . release.”
Munaf v. Geren, 553 U.S. 674, 693 (2008). Thus, for an APA
claim to be brought in habeas, it must have some relationship
to the prisoner’s release. Thieme satisfies that nexus
requirement because his APA claims challenge the proration
and the loss of a potential 28 days of good conduct time credits.
As to the merits of his APA claims, the APA allows
challenges to “final agency action,” 5 U.S.C. § 704, with the
APA defining the sub-term ‘agency action’ to include agency
rules and orders, id. § 701(b)(2); id. § 551(13) (defining
‘agency action’ to “include[] the whole or a part of an agency
rule, order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act”). That finality principle prevents
Thieme from challenging the BOP’s rule, codified in
regulation at 28 C.F.R. pt. 523, of its interpretation of the First
Step Act amendments. When Thieme filed his habeas petition
on October 22, 2020, the BOP had previously, on
December 31, 2019, proposed its new rule, and the comment
period had closed on March 2, 2020. See Good Conduct Time

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Credit Under the First Step Act, 84 Fed. Reg. at 72,274
(directing comments to be submitted by March 2, 2020). But
the BOP had not yet issued a final rule. See Good Conduct
Time Credit Under the First Step Act, 87 Fed. Reg. at 7,938
(Feb. 11, 2022). And thus, Thieme’s APA challenge to the
regulation was premature and validly rejected. See Corner
Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799,
808 (2024) (explaining that “§ 704’s finality requirement . . .
is a ‘necessary, but not by itself . . . sufficient, ground for
stating a claim under the APA’” (quoting Herr v. U.S. Forest
Serv., 803 F.3d 809, 819 (6th Cir. 2015)) (ellipses in original));
Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (explaining the
conditions for agency action to be considered ‘final’ and
therefore reviewable under the APA). The finality principle,
however, does not prevent Thieme from challenging the BOP’s
recalculation of his earliest possible release date. Such a
determination qualifies as an agency order,9 and the BOP made
that determination using its new methodology on April 25,
2020, before Thieme filed suit.
9 See 5 U.S.C. § 551(6) (defining ‘order’ to “mean[] the whole
or a part of a final disposition, whether affirmative, negative,
injunctive, or declaratory in form, of an agency in a matter
other than rule making but including licensing”); Chi. & S. Air
Lines v. Waterman S.S. Corp., 333 U.S. 103, 112–13 (1948)
(“[A]dministrative orders are not reviewable unless and until
they impose an obligation, deny a right or fix some legal
relationship as a consummation of the administrative
process.”); Robert W. Mauthe MD PC v. Millennium Health
LLC, 58 F.4th 93, 101 (3d Cir. 2023) (Phipps, J., concurring)
(“[A]n order . . . is an agency ‘disposition’ of a ‘matter[]’
arrived at through ‘adjudication[]’ that is the concrete
application of legal principles to a specific party based on its
particular circumstances.” (citations omitted) (first quoting
5 U.S.C. § 551(6); and then quoting id. § 551(7))).

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Although the APA itself does not present a barrier to
Thieme’s proceeding with an APA challenge to the BOP’s
determination of his release date, the Sentencing Reform Act
of 1984 does. Part of that legislation expressly exempted
several provisions of the APA from applying to a subchapter
within Title 18 of the United States Code:
The provisions of sections 554 and 555 and 701
through 706 of title 5, United States Code, do not
apply to the making of any determination,
decision, or order under this subchapter.
Pub. L. No. 98-473, tit. II, § 212(a)(2), 98 Stat. 2010 (1984)
(codified at 18 U.S.C. § 3625). One of the exempted APA
sections, 5 U.S.C. § 706, is the basis for Thieme’s APA claim.
And the referenced ‘subchapter’ includes the challenged
statutory provision, 18 U.S.C. § 3624(b)(1), which governs the
calculation of good conduct time credit. See Reeb v. Thomas,
636 F.3d 1224, 1227 (9th Cir. 2011) (“The plain language of
[18 U.S.C. § 3625] specifies that the judicial review provisions
of the APA, 5 U.S.C. §§ 701–706, do not apply to ‘any
determination, decision, or order’ made pursuant to 18 U.S.C.
§§ 3621–3624.”); Richmond v. Scibana, 387 F.3d 602, 605
(7th Cir. 2004) (explaining that inmate placement decisions
governed by 18 U.S.C. §§ 3621(a) and 3624(c) are “not open
to challenge under the APA” in light of § 3625).
Consequently, Thieme cannot bring an APA challenge to the
BOP’s calculation of his specific release date. See Murray v.
Bledsoe, 650 F.3d 246, 247 n.1 (3d Cir. 2011) (per curiam)
(explaining “that the APA’s provisions for judicial review of
administrative agency decisions . . . do not apply to decisions
made under 18 U.S.C. §§ 3621–26” (citing 18 U.S.C.
§ 3625)); see also Standifer v. Ledezma, 653 F.3d 1276, 1279
n.3 (10th Cir. 2011) (recognizing that § 3625 “prohibits
judicial review under the APA”).

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Thieme’s additional constitutional argument – a separation-
of-powers challenge to Chevron deference – is directed at the
District Court’s reliance on Chevron as an alternative ground
for its ruling. But after the District Court issued that decision,
the Supreme Court abrogated Chevron deference, see Loper
Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024)
(overruling Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984)), and without Chevron deference, the
District Court’s ruling depends wholly on the meaning of the
First Step Act amendments.
B. The First Step Act amendments compel the
proration of good conduct time credit.
As far as Thieme’s challenge to the BOP’s interpretation of
§ 3624(b)(1), the strongest argument against the proration of
good conduct time credit is that the First Step Act deleted the
term ‘prorated’ from the statute. The significance of a deletion
of statutory text is informed by the rule against superfluity. See
Hayes v. Harvey, 903 F.3d 32, 42 (3d Cir. 2018) (recognizing
that the presumption that Congress “intends [its amendments]
to have real and substantial effect” is a corollary of the canon
against superfluity (quoting Ross v. Blake, 578 U.S. 632, 641–
42 (2016))). Under that canon, “every word in a statute should
be given effect.” United States v. Weiss, 52 F.4th 546, 552
(3d Cir. 2022) (citing Nat’l Ass’n of Mfrs. v. Dep’t of Def.,
583 U.S. 109, 128–29 (2018)). Thus, if text is deleted from a
statute, the statute will not ordinarily have the same meaning
as it had with the text included. See Pierce County v. Guillen,
537 U.S. 129, 145 (2003) (rejecting an interpretation of a
statute that “would render [an amendment] . . . an exercise in
futility,” as a “reading [that] gives [an] amendment no ‘real and
substantial effect’ . . . cannot be the proper understanding of
the statute” (quoting Stone v. INS, 514 U.S. 386, 397 (1995))).
But the First Step Act’s revisions were not entirely deletions;
they also substituted the phrase ‘for each year’ in place of ‘at
the end of each year.’ First Step Act of 2018, Pub. L. No. 115-
391, tit. I, § 102(b)(1), 132 Stat. 5194, 5210 (codified at

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18 U.S.C. § 3624(b)(1)). And the words ‘for each,’ which are
not statutorily defined or recognized terms of art,10 have a
common and ordinary meaning synonymous with the word
‘per.’ See Per, Merriam-Webster’s Collegiate Dictionary 918
(11th ed. 2003) (defining ‘per’ to mean “with respect to every
member of a specified group: for each”); Per, Oxford English
Dictionary (Aug. 2025) (defining ‘per,’ “[i]n [its] distributive
sense,” to mean “[f]or each” or “for every”).11 That word,
when “[u]sed after a statement of number or quantity,”
“express[es] a rate or proportion.” Per, Oxford English
Dictionary (Aug. 2025). Thus, although the First Step Act
deleted one rate-setting term, ‘prorated,’ it added another, ‘for
each,’ and that addition was in much closer proximity to
‘54 days’ than ‘prorated’ previously appeared: “up to 54 days
for each year of the prisoner’s sentence imposed by the court.”
18 U.S.C. § 3624(b)(1) (emphasis added); see also United
States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 499
(D.C. Cir. 2004) (Roberts, J.) (inferring that, through the
introduction of a phrase in one part of a statute, “Congress was
reinforcing – rather than abandoning –” a meaning “that might
otherwise have been blurred by the addition of” another
provision). From that clause, the revised statute is most
naturally read as setting a rate for good conduct time credit at
54 days per year. Thus, despite the First Step Act’s deletion of
10 Under the common and ordinary meaning canon, a term’s
meaning is limited to its common and ordinary meaning or
meanings unless the term is statutorily defined or a recognized
term of art. See Weiss, 52 F.4th at 549 (citing Perrin v. United
States, 444 U.S. 37, 42 (1979)).
11 https://www.oed.com/dictionary/per_prep?tab=meaning_an
d_use [https://perma.cc/Q35F-BLLJ]. See also Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 423 (2012) (approving the use of the eleventh edition of
Merriam-Webster’s Collegiate Dictionary and the online
edition of The Oxford English Dictionary).

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the term ‘prorated,’ its other amendments preserve the
proration process for the final portion of a year of a prisoner’s
sentence.
Resisting that conclusion, amicus argues that in the phrase
‘up to 54 days for each year,’ the word ‘year’ refers to both full
years and partial years. It is true that in addition to the ordinary
and common meaning of ‘year’ as full year,12 the term ‘year’
can sometimes mean partial year, such as in the phrase ‘school
year.’ But context informs statutory interpretation, see City &
County of San Francisco v. EPA, 604 U.S. 334, 350 (2025),
and the phrase ‘up to 54 days for each year,’ sets the rate at
which good conduct time credits accrue. In the rate-setting
context, there is real value in using a constant as the
denominator. Moreover, the object of statutory construction is
to interpret a statutory provision capable of two distinct
meanings so that it has only a single meaning – not to preserve
both meanings and apply the one that better fits the context of
a particular application of the statute. See Loper Bright,
603 U.S. at 400 (explaining that a statutory term “no matter
how impenetrable . . . must[] have a single, best meaning”
(emphasis added)). Yet under amicus’s interpretation, the term
‘year’ would mean ‘full year’ for the first 17 years of his
sentence but then ‘partial year’ for the last six months of his
sentence. That approach does not work in the rate-setting
context, and more problematically, by attempting to preserve
both potential meanings of a statutory provision, it is not a
permissible mode of statutory interpretation.
As a final attack, amicus invokes the rule of lenity. That
rule applies only to penal statutes, and although the Supreme
Court has not determined whether the challenged statute,
18 U.S.C. § 3624(b)(1), is penal, at least one Circuit has
12 United States v. Brown, 740 F.3d 145, 149 (3d Cir. 2014)
(“In common usage, a year means 365 consecutive days . . . or
12 months.”).

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concluded that the pre-First Step Act version of the statute was
not penal. Compare Barber, 560 U.S. at 488 (assuming, “for
present purposes” and without deciding, “that § 3624(b) can be
construed as imposing a criminal penalty” and therefore
reserving the question of whether § 3624(b) can be classified
as ‘penal’ for purposes of triggering the rule of lenity), with
Sash v. Zenk, 428 F.3d 132, 135 (2d Cir. 2005) (Sotomayor, J.)
(concluding that § 3624(b) is non-penal). But even if
§ 3624(b)(1) qualified as penal, the rule of lenity would not
automatically apply; rather, it applies only when there is a
“grievous ambiguity.” Barber, 560 U.S. at 488 (“[T]he rule of
lenity only applies if, after considering text, structure, history,
and purpose, there remains a ‘grievous ambiguity or
uncertainty in the statute,’ such that the Court must simply
‘guess as to what Congress intended.’” (internal citations
omitted) (first quoting Muscarello v. United States, 524 U.S.
125, 139 (1998); and then quoting Bifulco v. United States,
447 U.S. 381, 387 (1980))). And there is no such ambiguity
here. As explained above, the natural reading of the statute is
that good conduct time credits accrue at the rate of 54 days per
year and credit for partial years of confinement are determined
on a prorated basis.
CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the District Court.

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