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June 2, 2020

Sixth Circuit panel rules so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A) to be "mandatory claim-processing rule"

A few months ago, I discussed in this post some sloppy Third Circuit panel dicta in Raia on the so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A).  Among my complaints about the ruling in Raia was that the issue had not be directly brought or fully briefed before the Third Circuit in that case.  But today the Sixth Circuit addressed this issue squarely in US v. Alam, No. 20-1298 (6th Cir. June 2, 2020) (available here).  Here is how the opinion begins:

Like many Americans in poor health, 64-year-old Waseem Alam has legitimate fears about the health risks created by the COVID-19 pandemic.  And like many inmates, he has ample reason to fear that a prison exacerbates those risks.  But when Alam moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A), he failed to invoke all of the options for obtaining relief from the prison.  Alam asks us to overlook that reality by finding the requirement non-mandatory or by fashioning an exception of our own.  But because this exhaustion requirement serves valuable purposes (there is no other way to ensure an orderly processing of applications for early release) and because it is mandatory (there is no exception for some compassionate-release requests over others), we must enforce it.  We affirm the district court’s dismissal of Alam’s request without prejudice to filing a new one.

The panel decides (rightly in my view) that the so-called "exhaustion" procedural requirement for sentence-reduction motions is a "claim-processing rule" (and thus not jurisdictional).  But the panel also decides (wrongly in my view) that no "exceptions to mandatory claim-processing rules — waiver or forfeiture — apply here."  The panel in reaching this conclusion makes some reasonable policy arguments:

Even if federal courts possessed a general power to create equitable carveouts to statutory exhaustion requirements, Alam does not show why an exception would make sense in the context of this statute.  Remember that Congress made compassionate release available only to elderly prisoners and those with “extraordinary and compelling” reasons for release. 18 U.S.C. § 3582(c)(1)(A).  For such prisoners, time usually will be of the essence.  That would make nearly every prisoner eligible to invoke “irreparable harm” and eligible to jump the line of applications — making the process less fair, not more fair.

Appending a futility requirement does not improve things.  How could we divine whether the Bureau of Prisons may wish to act on any given petition?  And, in any event, why must we assume that the Bureau of Prisons’ failure to act would render the act of waiting “futile”?  Speed matters, yes.  But accuracy matters too.  Preventing prisoners from charging straight to federal court serves important purposes.  It ensures that the prison administrators can prioritize the most urgent claims.  And it ensures that they can investigate the gravity of the conditions supporting compassionate release and the likelihood that the conditions will persist.  These are not interests we should lightly dismiss or re-prioritize.

These policy arguments, though sound in the abstract, fail to give effect and suggest a lack of understanding for why and how Congress changed the process for compassionate release motions in the FIRST STEP Act.  As I stressed in this prior post what this panel decision ignores, namely all the reasons Congress sought to now enabled district judges to consider the merits of a sentence reduction under § 3582(c)(1)(A) without awaiting even full consideration of a request by prison administrators.  For years, BOP failed to use its authority to seek reductions even in the most compelling of cases, and so Congress decided to district courts could and should assess sentence-reduction requests without BOP serving as any kind of gatekeeper precisely because Congress concluded BOP could and should no longer be trusted to "prioritize the most urgent claims" or to adequately "investigate the gravity of the conditions" supporting a claim

Critically, with the FIRST STEP Act revision, Congress did not even actually require defendants to exhaust the BOP motion-request process before turning to the courts — which is what would have made sense if Congress still trusted the BOP process to some extent.  Rather Congress provided that a sentence-reduction motion could be considered by courts after "the lapse of 30 days from the receipt of such a request."   Put another way, this statute actually does have an express "carveout to statutory exhaustion requirements" in the form of the "lapse of 30 day" provision.  But, so the argument might go, even though Congress did create an exception to BOP exhaustion in the form of a "30 day" lapse requirement, why should courts even consider short-circuiting that express timeline?  Well, in the midst of a pandemic, a timeline intended by Congress to give a prisoner quick access to the court sensibly can and should be sped up consistent with the overall goals of § 3582(c)(1)(A).  But, disappointingly, rather than give full effect to the fundamental interest of Congress in giving ailing prisoners a chance to have speedy access to the courts based on the equities of the case, this panel decision determines that it is good policy to be respectful of BOP interests that Congress itself was eager to de-prioritize.

Prior related posts:

June 2, 2020 at 11:59 PM | Permalink


I am former federal prisoner and current consultant and certified paralegal. During my eighteen years in various federal prisons I was consistently honored to serve as a law clerk -- maintaining the prison's law library, teaching legal research and legal writing classes, and assisting my fellow prisoners with the preparation of administrative remedies and pro se legal pleadings. I share all of that so you know this is the voice of experience from someone who cares deeply about the plight of our incarcerated fellow citizens.

In Alam, the Sixth Circuit completely ignored the realities facing elderly and/or medically vulnerable federal prisoners. Here is a what their holding means in practice:

In a case where the warden denies compassionate release within 30 days, full exhaustion could easily take 6 months or more. This is true because of the delays built into the FBOP administrative exhaustion process. First, a prisoner would have to file a request to the Warden for compassionate release. If the warden denies that request (within 30 days -- so there's the first month or so) the prisoner must then file a request for administrative remedy ("BP-9") -- to the same warden. This step makes no sense, but its mandated under FBOP policy, which only sets out 4 exceptions, none of which apply here. See 28 CFR Sect 542.14(d) & Program Statement ("PS") 1330.18. The warden must usually answer the BP-9 within 20 days, but delays are common. The Warden may take an extension for any reason or no reason and even more often, the prison staff tasked with delivering the warden's response may delay days or weeks in delivering it. So figure another month or so here, if the prisoner is lucky (we're up to 2 months).

Then the prisoner must file his appeal to regional office ("BP-10"). The BP-10 requires a special form which the prisoner must obtain from his counselor, who may or may not be at work or easily available to him, and attachment of copies of the previously submitted BP-9 and the warden's response and must be mailed to the regional office. These requirements add additional delay, as getting the form, completing the form (often requiring the prisoner to obtain assistance) and obtaining copies takes time and there is the mailing delay. In my experience, during normal operations it takes at least a week to get the BP-10 ready and then it will sit in the mailroom awaiting screening. The regional response is due within 30 days and it will usually be dated within that timeframe. But, it is mailed to the institution, not the prisoner, so further routine delays occur. It is very common for the response to the BP-10 to be received by the prisoner weeks after it is dated. This is so common that there is a BOP policy on what should be done to ensure that the prisoner may file a timely administrative appeal to central office ("BP-11") following a delay that exceeds the 30 days from the date on the response to the BP-10 in which the prisoner's BP-11 must be submitted. The usual (and conservative) cumulative time to prepare the BP-10 and received a response is 60 days. (Our prisoner has now been waiting 4 months).

Obtaining the requisite form, completing the form, obtaining and attaching required copies, and mailing the BP-11 is every bit as onerous as preparing the BP-10. The response time on the BP-11 is 40 days, and this is where is gets outrageous. Numerous BP-11's have languished for 3 or more months without a answer. And, when the answer is issued, it gets mailed to the institution, not the prisoner -- more delays. This stage will take at least 60 days and likely much longer. (Our prisoner has now waited at least 6 months, based on very conservative estimations).

It's important to note that a delay at one stage precludes one from moving to the next stage, as your next stage remedy will be rejected unless it is accompanied by the answer you received at each earlier stage. Additionally, at each stage it's common for prisoners to make small technical oversights, e.g., not including the proper number of copies, including too many attachments, or even not using sufficient pressure when they write or type on the carbon-copy forms, resulting in the rejection of their submission, which adds additional delay while the rejection notice is sent to the institution for eventual delivery to the prisoner who must then correct the deficiency and resubmit the appeal, restarting the response deadline.

So, in requiring full exhaustion during the COVID-19 pandemic, Alam meaningfully abdicates the life-saving role that many district courts have embraced during the pandemic. A medically vulnerable prisoner cannot wait 6 months or more, in a facility ravaged by COVID-19. Unfortunately, if the warden denies his or her request within the 30 day window, that appears to be the practical result of Alam for those sentenced within the 6th Circuit -- unless their AUSA is willing to waive the defense of non-exhaustion. The 6th Cir's compelling reason not to find an exception applicable during the COVID-19 exigency: the convenience of prison officials. Congress recognized that the BOP could not be trusted to act responsibly as the gatekeepers for compassionate release. In Alam, the 6th Cir shamefully abdicated the role of the judiciary in saving those it sentenced to terms of imprisonment from having those sentences modified by COVID-19 to death sentences. This is just sad.

Posted by: Micah Darius Rudisill | Jun 3, 2020 1:15:40 PM

I see this issue ultimately being resolved by the U.S. Supreme Court, but obviously, it will take at least a year for Cert. to be granted, get the case briefed, argued and decided by the Court. In the interim, I am hoping that Raia's attorneys seek rehearing En Banc, to get things fixed before dozens of vulnerable inmates die.

Posted by: James Gormley | Jun 3, 2020 8:19:58 PM

The Third Circuit already dismisses Raia’s en banc rehearing petition after he secured release under 3582 after waiting 30 days.

Posted by: man sauce | Jun 3, 2020 9:44:51 PM

Micah: under a proper understanding of the procedural language, a defendant should get to court with a motion 30 days after a request to the warden no matter when gets done with that request. I know some argue "true exhaustion" is required once the process starts, but that is not a proper reading of the statute (and that is why I think waiver is consistent with and furthers congressional goals).

James and man: because Raia got relief after a 30 day wait, his en banc petition was dismissed by the Third Circuit. So that bad precedent stays on the books, and I doubt any further appeals on that case or this one is likely.

Posted by: Doug B | Jun 4, 2020 10:27:59 AM

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