Thomas Graham Parks, Plaintiff-appellant, v. Robert Christensen, Defendant-appellee, 751 F.2d 1081 (9th Cir. 1985)

Thomas Parks (appellant) appeals from the district court's denial of his petition for a writ of habeas corpus. Appellant contends that a prison disciplinary committee's decision in 1976 that he forfeit 141 days of extra good time must be vacated in light of a subsequently issued regulation that prohibits the forfeiture of extra good time as a disciplinary measure. 28 CFR Sec. 523.17(q). The question presented is a legal one, viz., whether this regulation is to be applied retroactively. Being a question of law, we review de novo. United States v. Launder, 743 F.2d 686, 688-89 (CA9 1984).

There are essentially two types of good time credit. Statutory good time is awarded an inmate for good conduct, 18 U.S.C. § 4161, while extra good time rewards an inmate for prison industrial employment or for "performing exceptionally meritorious service or ... duties of outstanding importance in connection with institutional operations." 18 U.S.C. § 4162. Federal prison officials were traditionally authorized to punish recalcitrant inmates by imposing forfeitures of both statutory and extra good time prior to the issuance of 28 CFR Sec. 523.17(q). See Federal Prison System Policy Statement 5270.2 at paragraph 9(d) (5) (1975). Neither Congress nor the courts recognized the distinction between statutory and extra good time for punishment purposes before promulgation of 28 CFR Sec. 523.17(q), and both types of good time were equally forfeitable. See, e.g., 18 U.S.C. § 4165 ("If during the term of imprisonment a prisoner commits any offense or violates the rules of the institution, all or any part of his earned good time may be forfeited."). Accord, Seawell v. Rauch, 536 F.2d 1283, 1284 (CA9 1976) (per curiam).

Beyond question, 28 CFR Sec. 523.17(q) clearly represents the creation of a right to be free from forfeiture of extra good time, which forfeiture the statutes, case law, and prison regulations formerly allowed. Because the regulation creates a new right, it must be deemed to apply prospectively only, in the absence of any showing of a contrary intent. Greene v. United States, 376 U.S. 149, 160, 84 S. Ct. 615, 621, 11 L. Ed. 2d 576 (1964) (statutes and regulations). Cf., Nelson v. Serwold, 687 F.2d 278, 284 (CA9 1982) (statutes). Appellant's forfeiture having occurred three years prior to the promulgation of 28 CFR Sec. 523.17(q), the district court properly rejected his claim. AFFIRMED.