UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

Deborah S. Hunt 

Clerk

100 EAST FIFTH STREET, ROOM 540 

POTTER STEWART U.S. COURTHOUSE 

CINCINNATI, OHIO 45202-3988 

Tel. (513) 564-7000 

www.ca6.uscourts.gov

 Filed: June 02, 2020 

Mr. Michael R. Dezsi 

615 Griswold Street 

Suite 1410 

Detroit, MI 48226 

Mr. Andrew Goetz 

United States Attorney's Office 

211 W. Fort Street 

Suite 2001 

Detroit, MI 48226 

Ms. Claire Sobczak 

U.S. Department of Justice 

1400 New York Avenue, N.W. 

Washington, DC 20005 

 Re: Case No. 20-1298, USA v. Waseem Alam

Originating Case No. : 2:15-cr-20351-2 

Dear Counsel, 

 The court today announced its decision in the above-styled case. 

 Enclosed is a copy of the court's opinion together with the judgment which has been entered 

in conformity with Rule 36, Federal Rules of Appellate Procedure. 

 Yours very truly, 

 

 Deborah S. Hunt, Clerk

 

 Cathryn Lovely 

Deputy Clerk

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cc: Mr. David J. Weaver 

Enclosures 

Mandate to issue. 

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RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0171p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WASEEM ALAM,

Defendant-Appellant.

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No. 20-1298

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:15-cr-20351-2—Sean F. Cox, District Judge.

Decided and Filed: June 2, 2020

Before: SUTTON, COOK, and MURPHY, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Michael R. Dezsi, LAW OFFICE OF MICHAEL R. DEZSI, PLLC, Detroit, 

Michigan, for Appellant. Andrew Goetz, UNITED STATES ATTORNEY’S OFFICE, Detroit, 

Michigan, for Appellee.

_________________

OPINION

_________________

SUTTON, Circuit Judge. 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 

>

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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.

In 2016, Alam pleaded guilty to conspiracy to commit health care and wire fraud for his 

role in a roughly $8,000,000 Medicare kickback scheme. He received a 101-month sentence and 

has served about half of it. Alam suffers from obesity, poorly controlled diabetes, sleep apnea, 

and coronary artery disease. And he has kidney stones and bladder issues. 

On March 25, Alam sent a letter to the prison warden requesting compassionate release. 

But he didn’t wait for a response. Ten days later, on April 4, Alam moved for emergency relief 

in federal court. The government pointed out that Alam had not complied with the 

compassionate-release statute’s administrative exhaustion requirement, 18 U.S.C. 

§ 3582(c)(1)(A). The district court responded that the requirement was obligatory and dismissed 

Alam’s claims without prejudice. Alam appealed.

By statute, a federal court “may not modify a term of imprisonment once it has been 

imposed.” 18 U.S.C. § 3582(c). But that rule comes with a few exceptions, one of which 

permits compassionate release. The request may come through a motion in federal court filed by 

the Director of the Bureau of Prisons. Id. § 3582(c)(1)(A). Or it may come through a motion 

filed by the inmate after he has “fully exhausted all administrative rights to appeal a failure of the 

Bureau of Prisons to bring a motion on the [prisoner]’s behalf” or after “the lapse of 30 days 

from the receipt of such a request by the warden of the [prisoner]’s facility, whichever is earlier.” 

Id. After “considering the factors set forth in section 3553(a),” a court may reduce the prisoner’s 

sentence if it finds that “extraordinary and compelling reasons warrant such a reduction” or if the 

“[prisoner] is at least 70 years of age,” has “served at least 30 years,” and meets certain other 

conditions. Id.

Alam seeks compassionate release under § 3582(c)(1)(A). But he can’t square that 

request with the terms of the statute. The Director of the Bureau of Prisons did not move for 

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compassionate release. And Alam has not exhausted his administrative appeals because he 

waited just 10 days after the warden’s receipt of his request to file his motion in federal court, 

not the required 30 days.

That leaves two questions. Does Alam’s failure to satisfy the § 3582(c)(1)(A) 

administrative exhaustion requirement deprive federal courts of subject-matter jurisdiction to 

hear his case? If not, may we excuse Alam’s failure to satisfy that requirement over the 

government’s timely objections?

Alam’s failure to satisfy this administrative exhaustion requirement does not deprive us 

of subject-matter jurisdiction. The Supreme Court has worked over the last decade or so to 

distinguish between jurisdictional rules (that bear on the competence of courts to hear a claim) 

and non-jurisdictional mandatory rules (that do not). See Arbaugh v. Y & H Corp., 546 U.S. 500, 

516 (2006). The two rules differ in key respects. Chief among them: Courts must raise 

jurisdictional defects on their own initiative and may not overlook them even if the parties forfeit 

or waive challenges to them. See Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). By contrast, 

mandatory claim-processing rules bind the courts only when properly asserted and not forfeited. 

See Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam). 

It’s “usually a mistake” to “treat a statutory limit on our power as a statutory limit on our 

subject-matter jurisdiction,” United States v. Marshall, 954 F.3d 823, 826 (6th Cir. 2020). 

A prescription limits our subject-matter jurisdiction only if “the Legislature clearly states that 

[the] prescription counts as jurisdictional.” Fort Bend County v. Davis, 139 S. Ct. 1843, 1850 

(2019).

Nothing in this administrative exhaustion requirement clearly limits our jurisdiction. It 

merely imposes a requirement on prisoners before they may move on their own behalf: They 

must “fully exhaust[] all administrative rights” or else they must wait for 30 days after the 

warden’s “receipt of [their] request.” 18 U.S.C. § 3582(c)(1)(A). That language neither 

“speak[s] in jurisdictional terms” nor “refer[s] in any way to the jurisdiction” of the courts. 

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). In appearance, the provision 

looks like a claim-processing rule, and in operation it acts like one.

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The Supreme Court’s “interpretation of similar provisions” supports this view. Reed 

Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010). This exhaustion requirement in material 

ways mimics Title VII’s requirement, which is non-jurisdictional. Fort Bend, 139 S. Ct. at 1847,

1851–52. Title VII requires claimants to present their claims to the EEOC so that the agency 

may decide whether to take legal action on their behalf. See id. Only after the EEOC elects not 

to act—or after 180 days pass—may the claimant proceed to federal court. Id. So too here. And

so too in other cases. See Woodford v. Ngo, 548 U.S. 81, 101 (2006) (holding non-jurisdictional 

the PLRA’s administrative exhaustion requirement); see also EPA v. EME Homer City 

Generation, L.P., 572 U.S. 489, 511–12 (2014) (holding non-jurisdictional the requirement that 

Clean Air Act plaintiffs object with reasonable specificity to a rule during that rule’s public 

comment period); Reed Elsevier, 559 U.S. at 163–65 (holding non-jurisdictional the requirement 

that Copyright Act plaintiffs register their copyrights before bringing an infringement action).

Even though this exhaustion requirement does not implicate our subject-matter 

jurisdiction, it remains a mandatory condition. If the Director of the Bureau of Prisons does not 

move for compassionate release, a prisoner may take his claim to court only by moving for it on 

his own behalf. To do that, he must “fully exhaust[] all administrative rights to appeal” with the 

prison or wait 30 days after his first request to the prison. 18 U.S.C. § 3582(c)(1)(A). 

When “properly invoked,” mandatory claim-processing rules “must be enforced.” 

Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017). Ross v. Blake illustrates 

the point. 136 S. Ct. 1850 (2016). It rejected the idea that courts could create a “special 

circumstances” exception to the PLRA’s exhaustion requirement. Id. at 1856. Because 

“Congress sets the rules” when it comes to statutory exhaustion requirements, the judiciary has a 

role to play in exception-crafting “only if Congress wants [it] to.” Id. at 1857. Nothing in 

§ 3582(c)(1)(A) suggests the possibility of judge-made exceptions.

Nor can Alam show that exceptions to mandatory claim-processing rules—waiver or 

forfeiture—apply here. See United States v. Cotton, 535 U.S. 625, 630 (2002). The government 

timely objected to Alam’s failure to exhaust at every available opportunity. And with good 

reason: It wants to implement an orderly system for reviewing compassionate-release 

applications, not one that incentivizes line jumping.

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Alam pushes back that the exhaustion requirement is not mandatory because it does not 

contain language like “no action shall be brought” common to many mandatory claim-processing 

rules. But a sufficient explanation for a mandatory rule is not a necessary one. The language 

Congress used is quite mandatory anyway. It says a “court may not” grant relief without 

complying with the exhaustion requirement, 18 U.S.C. § 3582(c), and thus operates as an 

“unyielding procedural requirement[],” United States v. Dowl, 956 F.3d 904, 908 (6th Cir. 2020) 

(per curiam).

Alam adds that the exhaustion requirement in § 3582(c)(1)(A), unlike the § 1997e(a) 

exhaustion requirement contained in the PLRA, does not limit itself to administrative remedies 

“available” to prisoners. 42 U.S.C. § 1997e(a); cf. Ross, 136 S. Ct. at 1858–62. That, he says, 

shows Congress did not mean to require exhaustion in all compassionate-release cases. But there 

is a distinction between the statutes in this respect. Prisoners who seek compassionate release 

have the option to take their claim to federal court within 30 days, no matter the appeals 

available to them. Prisoners lack that luxury under the PLRA.

Alam notes that another provision, 18 U.S.C. § 3582(c)(2), authorizes prisoners to seek a 

sentence reduction without administrative exhaustion. He’s right. But why that helps him 

remains unclear. The neighboring provision applies to prisoners who had their sentence set 

based on a subsequently lowered sentencing range. Courts will have little trouble determining 

whether prisoners are eligible for resentencing under that provision; they need only compare the 

prisoner’s presentence report and current guidelines range. By contrast, eligibility for 

compassionate release turns on harder-to-parse considerations that benefit from greater 

ventilation. The absence of an exhaustion requirement in § 3582(c)(2) in truth hurts Alam’s 

case. It shows that, when exhaustion is not needed, Congress knows how to omit it.

Alam insists that the backdrop to § 3582(c)(1)(A) suggests that Congress wished to make 

compassionate release available to a broader group of inmates. Prior to 2018, it is true, only the 

Director of the Bureau of Prisons could move for compassionate release. The First Step Act 

changed that. See First Step Act of 2018, § 603, Pub. L. No. 115-391, 132 Stat. 5239. It 

amended § 3582(c) to allow prisoners to move for compassionate release on their own behalf. 

No one contests that Congress made this change to increase access to compassionate release. 

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But it does not follow that Congress meant to excuse prisoners’ failure to follow an exhaustion 

requirement that it deliberately added in the same amendment.

Noting that the Supreme Court has reserved the question whether “equitable exceptions” 

may “ever” apply to “mandatory claim-processing rules,” Fort Bend, 139 S. Ct. at 1849 n.5 

(quotation omitted), Alam requests that we innovate an equitable exception to this requirement to 

account for irreparable harm or futility. But the norm is to follow a mandatory rule unless the 

statutory exceptions apply. See Hamer, 138 S. Ct. at 17; Manrique v. United States, 137 S. Ct. 

1266, 1271–72 (2017); Ross, 136 S. Ct. at 1856–57; Eberhart, 546 U.S. at 19 (per curiam).

McKart v. United States, 395 U.S. 185, 193–97 (1969), and McCarthy v. Madigan, 

503 U.S. 140, 147–48 (1992), do not alter this conclusion. They involve judge-made exceptions 

to judge-made exhaustion doctrines. Those are birds of a different feather. See Ross, 136 S. Ct. 

at 1857. And Alam’s reliance on Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 

1 (2000), hurts his cause. That case declined to read atextual exceptions into a statutory 

requirement. Id. at 11–14. And the Court has subsequently cited that case for the proposition 

that courts may not “add unwritten limits” into administrative exhaustion requirements. Ross, 

136 S. Ct. at 1857.

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 

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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. 

Just one published decision of a federal court of appeals has faced a circumstance in 

which a prisoner failed to comply with the § 3582(c)(1)(A) administrative exhaustion 

requirement. That court found the omission a “glaring roadblock foreclosing compassionate 

release.” United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). We agree.

Alam counters that this pandemic is unprecedented. Fair enough. Diseases with the 

morbidity of COVID-19 arise only occasionally. But it is not clear which way that cuts. By 

creating a compassionate-release option in the First Step Act, Congress gave inmates an option 

to seek early release on health grounds. The seriousness of COVID-19 and its spread in many 

prisons make it all the more imperative that the prisons have authority to process these 

applications fairly and with due regard for the seriousness of each inmate’s risk. Free-floating 

exceptions to the rule, available to anyone willing to go to federal court first, will not help that 

cause. Recall that inmates can identify the ongoing public health crisis in their initial petition to 

their wardens. If that doesn’t work, prisoners can pursue administrative review. If that also 

comes up short (or if 30 days pass), prisoners have the option to go to federal court. Thirty days 

hardly rises to the level of “an unreasonable or indefinite timeframe.” McCarthy, 503 U.S. at 

147.

Nor have the political branches been insensitive in responding to the COVID-19 

pandemic. The CARES Act expands the power of the Bureau of Prisons to “place a prisoner in 

home confinement” as an alternative to compassionate release. Coronavirus Aid, Relief, and 

Economic Security Act (CARES Act), § 12003(b)(2), Pub. L. No. 116-136, 134 Stat. 281 (Mar. 

27, 2020). And the Attorney General has instructed the Bureau of Prisons to make the most of 

this expanded power by placing in home confinement “all inmates whom [the Bureau] deem[s] 

suitable candidates.” Increasing Use of Home Confinement at Institutions Most Affected by 

COVID-19, Office of the Attorney General (Apr. 3, 2020). The system is working as it should. 

A policy problem appeared, and policy solutions emerged.

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One final question: What should we do with Alam’s untimely motion? We conclude that 

we should dismiss it without prejudice. The Supreme Court has previously applied this remedy 

in cases where parties filed in court before waiting out a statutorily required non-adversarial 

window. See, e.g., Hallstrom v. Tillamook County, 493 U.S. 20, 33 (1989). We have done the 

same in cases where parties failed to exhaust. See, e.g., S.E. v. Grant Cty. Bd. of Educ., 544 F.3d 

633, 642–43 (6th Cir. 2008); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). This 

approach comports with the general rule that we must strictly enforce statutory limits on the 

timing of a claim’s filing. See Carlisle v. United States, 517 U.S. 416, 433 (1996). And it makes 

plenty of sense on its own terms. If (rather than dismissing) we sat on untimely compassionate 

release motions until the 30-day window ran its course, we could end up reviewing stale 

motions. Better to have Alam refile with the benefit of whatever additional insight he may have 

gleaned.

We affirm the dismissal of Alam’s motion without prejudice.

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 20-1298

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WASEEM ALAM,

Defendant - Appellant.

Before: SUTTON, COOK, and MURPHY, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

THIS CAUSE was heard on the record from the district court and was submitted on the briefs 

without oral argument.

IN CONSIDERATION THEREOF, it is ORDERED that the district court’s dismissal of Waseem 

Alam’s motion for compassion release under 18 U.S.C. § 3582(c)(1)(A) is AFFIRMED without 

prejudice.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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