Inmate Release Exhaustion Rule Should Be Waived For COVID

By Jolene LaVigne-Albert
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Law360 (April 19, 2020, 8:02 PM EDT) --
Jolene LaVigne-Albert
Jolene LaVigne-Albert
Prior to the COVID-19 pandemic, an application for compassionate release was often seen as "frivolous on its face."[1] The current health crisis changed all of that, with federal courts granting these applications in increasing numbers.

But with several judges ruling on compassionate release applications every day, federal courts are already starkly divided on the issue of whether the statutory administrative exhaustion requirement — which effectively imposes a 30-day waiting period before a defendant may seek judicial determination of a release application — may be waived.[2]

While the U.S. Court of Appeals for the Third Circuit, has already held that the exhaustion requirement cannot be waived,[3] the U.S. Court of Appeals for the Second Circuit has yet to rule on the matter, and many district courts in New York have already held that the exhaustion requirement can be waived.

Since 30 days in a correctional facility facing a COVID-19 outbreak is for all intents and purposes an eternity, a defendant's ability to seek judicial determination in less than 30 days could ultimately become a matter of life or death.

What is compassionate release?

Pursuant to U.S. Code Title 18 Section 3582(c)(1)(A)(i), a court may reduce a term of imprisonment where "extraordinary and compelling reasons warrant such a reduction." Prior to the enactment of the First Step Act in December 2018, only the Bureau of Prisons could bring such compassionate release applications. Now, defendants can bring these applications themselves.

What is the requirement for exhaustion of administrative remedies?

Section 3582(c)(1)(A)(i) provides that compassionate release applications by a defendant can be made upon the earlier of "the defendant ha[ving] fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf" or after "30 days from the receipt of such a request by the warden of the defendant's facility."

By all accounts, the BOP has been overwhelmed with compassionate release applications due to the COVID-19 pandemic, and has been unable to deal with them in a timely fashion.[4] Meanwhile, federal courts — which have generally seen their usual dockets reduced in light of the current COVID-19 pandemic — are dealing with increasing numbers of compassionate release applications, with judges issuing detailed reasons in record time.

Thus, in the last month, the issue at the forefront of many of these applications has been whether federal courts are required to wait 30 days before they can rule on them.

What arguments have been successful in convincing federal courts that the administrative exhaustion requirement can and must be waived?

First, any defendant who has valid grounds to seek compassionate release in the current COVID-19 pandemic should immediately apply to the warden of the facility where they are being held for the BOP to move for compassionate release of the defendant. In addition to assuring that the defendant will be entitled to judicial determination within 30 days of the application to the warden, the administrative request is likely to be seen favorably by the court as at least an attempt to comply with the exhaustion requirement, militating in favor of a waiver of the 30-day waiting period.

Second, a defendant should emphasize the statute's obvious congressional purposes, and the fact that a waiver of the exhaustion requirement is consistent with those purposes. "Generally, Congress imposes exhaustion requirements in order to serve the twin purposes of protecting administrative agency authority and promoting judicial efficiency."[5]

But strict enforcement of the 30-day waiting period in the current circumstances actually impedes judicial efficiency, because it forces courts to consider the matter twice: first during the 30-day waiting period to determine whether the court may waive the exhaustion requirement, and second a few days or weeks later to adjudicate the application on the merits once the waiting period is up (or once the BOP has failed to respond to a court's direct request to weigh in).

A quick review of the docket of the U.S. District Court for the Southern District of New York already reveals many instances where federal judges have considered the same release application twice within days.[6] This judicial inefficiency results from the fact that although a delay of a few days or a couple of weeks may be meaningless in normal circumstances, it is not in the midst of a pandemic.

What would be most efficient — and potentially save lives — would be for courts to waive the 30-day waiting period the first time they consider the application. In the words of U.S. District Judge Jed Rakoff:

Congressional intent not only permits judicial waiver of the 30-day exhaustion period, but also, in the current extreme circumstances, actually favors such waiver, allowing courts to deal with the emergency before it is potentially too late.[7]

Although Congress usually aims at protecting an administrative agency's authority when imposing an exhaustion requirement, the compassionate release statute is clearly different from any traditional exhaustion requirement in that respect.

For one, it is apparent that the statute greatly reduces the importance of the administrative agency's authority because it provides that a defendant can seek judicial determination before the agency has rendered a final decision. The language of the statute and the history of its enactment in the First Step Act (which for the first time permitted defendants to seek relief directly from a court instead of having to rely exclusively on the BOP) show that Congress intended to assure meaningful and prompt judicial determination for defendants seeking compassionate release.[8] In the words of U.S. District Judge Lewis Liman:

Section 3582(c) is a distinctive federal statute, unlike those in the cases cited by the Government. It does not reflect unqualified commitment to administrative exhaustion and it does reflect acknowledgement that the judiciary has an independent interest in, and responsibility for, the criminal judgments it is charged with imposing. It has features of an administrative exhaustion requirement and of a timeliness statute. As previously explained by the Court, the plain language of Section 3582(c) evinces congressional intent that a defendant has a right to a prompt and meaningful judicial determination of whether she should be compassionately released, regardless of whether administrative remedies have been exhausted. (Dkt. No. 54 at 4.) There is no other way to read the language giving a defendant the right to make a judicial motion for compassionate release thirty days after making an application to the BOP, without needing to wait for the administrative process to be completed.[9] ...

In essence, the 30-day rule was meant as an accelerant to judicial review. The Court is charged with interpreting congressional intent and it would pervert congressional intent to treat it as a substantial obstacle to effective judicial review.[10]

Third, it should be emphasized that because Section 3582(c)(1)(A) was only recently enacted and is "extremely unusual (if not unprecedented),"[11] reliance on cases that have considered traditional exhaustion requirement statutes is ineffective and risks frustrating the purposes of the statute.

The uniqueness of Section 3582(c)(1)(A) stems from the fact that it "does not contain an exhaustion requirement in the traditional sense. That is, the statute does not necessarily require the moving defendant to fully litigate his claim before the agency (i.e., the BOP) before bringing his petition to court."[12]

One of the cases heavily relied upon by courts that have strictly applied the exhaustion requirement of Section 3582(c) is Athanasios Theodoropoulos v. Immigration and Naturalization Service.[13] However, the immigration statute at issue in Theodoropoulos could not have been more different from the compassionate release statute of the First Step Act.

The goal of the statute at issue[14] in Theodoropoulos was to assure that the U.S. Immigration and Naturalization Service, "as the agency responsible for construing and applying the immigration laws and implementing regulations, has had a full opportunity to consider a petitioner's claims before they are submitted for review by a federal court," and to allow the INS "to discover and correct [its] own errors."[15]

And the court there found that the exhaustion requirement was a jurisdictional requirement.[16] But with Section 3582(c)(1)(A), Congress plainly did not intend for the BOP to have a full opportunity to consider a defendant's application or to correct its own errors because Congress provided that a defendant was entitled to meaningful review by a judge after 30 days, even if the BOP has not considered the application by that point. And, as discussed below, there is a consensus that Section 3582(c)(1)(A) is not a jurisdictional requirement.

Moreover, even in Theodoropoulos the Second Circuit acknowledged that an exception to the general rule of strict application of administrative exhaustion requirements is warranted in certain circumstances, for example when the administrative procedure provides "no possibility of receiving any type of relief."[17]

In the current COVID-19 pandemic, already the BOP is telling federal courts that it simply cannot deal with the volume of compassionate release applications. For example, on April 6, the BOP wrote in response to a request from the court regarding a compassionate release application that it was "unable to commit to resolving [defendant]'s application by April 10, 2020, on account of the multi-stage internal review process at the BOP and competing demands on the BOP's time," and failed to commit to a date by which it would be able to decide the application.[18] Several courts have held that such circumstances are sufficient to trigger the exception contemplated in Theodoropoulos.[19]

Fourth, it is significant that even courts that have refused to waive the exhaustion requirement have not found it to be a jurisdictional requirement.[20] In fact, the U.S. Attorney's Office for the Southern District of New York has conceded that the exhaustion requirement is not jurisdictional.[21] And for good reasons, because the U.S. Supreme Court has held that absent a clear statement by Congress that a rule is jurisdictional, a restriction should be treated as nonjurisdictional,[22] and the Second Circuit "has firmly disagreed with the characterization by certain other circuits that § 3582(c)(2) [a section related to Section 3582(c)(1)(A)] is jurisdictional."[23]

The result of this is that in contrast with jurisdictional exhaustion requirements such as the one in Theodoropoulos, which deprive the court of subject matter jurisdiction, a claim-processing rule such as  Section 3582(c)(1)(A) "simply delineates the process for a party to obtain judicial review,"[24] and is subject to equitable considerations such as waiver, forfeiture, futility or equitable tolling.[25]

Thus, the "same logic that supports reading judicially-crafted equitable tolling into an otherwise clear congressional statute so as to honor congressional intent for claims not to be brought too late ... supports doing so to respect congressional purpose for claims to be brought sufficiently early."[26]

In fact, the U.S. attorney's office has waived the administrative exhaustion requirement in recent cases, and in those cases the court decided that it was thus permitted to grant the application even if it had been pending for less than 30 days.[27] More recently, courts have held that "the First Step Act did not empower the Government with the sole authority to decide when and under what conditions exhaustion may be waived,"[28] and that if the office can waive the exhaustion requirement, so can a federal court.[29]


Of course, a court's willingness to waive the administrative exhaustion requirement does not assure that a compassionate request will be granted. Some of the courts that have waived the 30-day waiting period have granted the ultimate release application,[30] while others have denied it for other reasons.[31] The health condition of the defendant is definitely an important factor in the court's ultimate decision to grant compassionate release or not. But of the several dozens of applications considered to date in New York, a majority were denied on the basis of the defendant's failure to exhaust administrative remedies.

Jolene F. LaVigne-Albert is an associate at Schlam Stone & Dolan LLP

"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] United States v. Haney , No. 19-cr-541, 2020 U.S. Dist. LEXIS 63971, *1 (S.D.N.Y. Apr. 13, 2020) (Rakoff, J.).

[2] See, e.g. Haney, 2020 U.S. Dist. LEXIS 63971, *3 (collecting cases); United States v. Schultz , No. 17-cr-193S, 2020 U.S. Dist. LEXIS 66512, *10-11 (W.D.N.Y. Apr. 15, 2020) (Skretny, J.) (collecting cases).

[3] United States v. Raia , No. 20-1033, 2020 U.S. App. LEXIS 10582, 2020 WL 1647922 (3d Cir. Apr. 2, 2020).

[4] See, e.g. Haney, 2020 U.S. Dist. LEXIS 63971, *10-11 ("Because of the pandemic, prisoners have inundated the BOP with requests for release. Frustrated with the agency's inability to adjudicate their petitions quickly, these prisoners are coming to courts en masse irrespective of the 30-day rule.").

[5] Haney, 2020 U.S. Dist. LEXIS 63971, *8, quoting McCarthy v. Madigan , 503 U.S. 140, 145 (1992) (internal quotation marks omitted).

[6] See, e.g. United States v. Russo , Dkt. 16-cr-441, 2020 U.S. Dist. LEXIS 65390 (S.D.N.Y. Apr. 14, 2020) (Liman, J.) (ruling on application deferred on April 3, 2020 for failure to exhaust administrative remedies; same application considered on the merits and denied without prejudice on April 14, 2020); United States v. Paciullo , Dkt. 15-cr-834, 2020 U.S. Dist. LEXIS 65198 (Apr. 14, 2020) (Wood, J.) (ruling on application deferred on April 14, 2020 for failure to exhaust administrative remedies; court to consider merits on April 23, 2020).

[7] Haney, 2020 U.S. Dist. LEXIS 63971, *11-12 (emphasis added).

[8] See, e.g. id. at *9.

[9] Russo, 2020 U.S. Dist. LEXIS 65390, *15-16.

[10] Id. at *17 (emphasis added; quotation marks omitted).

[11] Id. at *16.

[12] Haney, 2020 U.S. Dist. LEXIS 63971, *8.

[13] Theodoropoulos v. INS , 358 F.3d 162 (2d Cir. 2004). Some courts have also relied on United States v. Monzon, which in turn relies on Theodoropoulos. Dkt. 99-cr-157, 2020 U.S. Dist. LEXIS 20566, *4 (S.D.N.Y. Feb. 4, 2020) (Cote, J.). See, e.g. Schultz, 2020 U.S. Dist. LEXIS 66512, *4, 10, 12, 13; United States v. Skelos , Dkt. 15-cr-317, 2020 U.S. Dist. LEXIS 64639, *8 (S.D.N.Y. Apr. 12, 2020) (Wood, J.); United States v. Acevedo, Dkt. 18-cr-365, 2020 U.S. Dist. LEXIS 64366, *3 (S.D.N.Y. Apr. 13, 2020) (Schofield, J.).

[14] The statute at issue in Theodoropoulos was 8 U.S.C. § 1252(d), which provides that "[a] court may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right."

[15] Id. at 171 (internal citations omitted).

[16] Id. at 168-169.

[17] Theodoropoulos, 358 F.3d at 172, citing Booth v. Churner , 532 U.S. 731, 736 & n.4 (2001). See also Washington v. Barr , 925 F.3d 109, 118 (2d Cir. 2019) ("Even where exhaustion is seemingly mandated by statute . . . the requirement is not absolute.").

[18] United States v. Nash, Dkt. 15-cr-445, ECF No. 1084 (Apr. 8, 2020) (Engelmayer, J.).

[19] Skelos, 2020 U.S. Dist. LEXIS 64639, *8 (collecting cases).

[20] See, e.g. United States v. Gentille , Dkt. 19-cr-590, 2020 U.S. Dist. LEXIS 62680, *8 (S.D.N.Y. Apr. 9, 2020) (Polk Failla, J.) ("The Court agrees with the Government that § 3582(c)(1)(A)'s exhaustion requirement is not jurisdictional, but rather is a claims-processing rule that the Government can waive by failing to raise an exhaustion argument.") (court noting without deciding that it would be inclined to find that it lacked the authority to waive the administrative exhaustion requirement); United States v. Rensing , 16-cr-442, ECF No. 105, 3 (S.D.N.Y. Apr. 13, 2020) (Marrero, J.) (explicitly avoiding the issue of whether the exhaustion requirement is jurisdictional); United States v. Fana , Dkt. 19-cr-00011, 2020 U.S. Dist. LEXIS 63403 (S.D.N.Y. Apr. 10, 2020) (Woods, J.) (silent on the issue).

[21] See Letter Response in Opposition, United States v. Gentille, No. 19-cv-590, ECF. No. 31 (S.D.N.Y. Apr. 6, 2020) ("Although it is not a jurisdictional bar, the exhaustion requirement is a so-called claims processing or case-processing rule—a rule that seeks to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times) (internal quotation marks and citations omitted), quoted in Russo, 2020 U.S. Dist. LEXIS 65390, *10-11.

[22] Sebelius v. Auburn Reg'l Med. Ctr. , 568 U.S. 145, 153 (2013).

[23] Haney, 2020 U.S. Dist. LEXIS 63971, *5, citing United States v. Johnson , 732 F.3d 109, 116 n.11 (2d Cir. 2013).

[24] Haney, 2020 U.S. Dist. LEXIS 63971, *6.

[25] Russo, 2020 U.S. Dist. LEXIS 65390, *11-16.

[26] Id. at *17, citing Holland v. Florida , 560 U.S. 631, 649 (2010).

[27] See, e.g., Nash, No. 15-cr-445, ECF No. 1084, 3 ("To its credit, the Office has elected, in some cases prompted by the COVID-19 emergency, not to invoke that doctrine [of administrative exhaustion as a barrier to judicial action], permitting the Court to order the release of inmate whose compassionate release application had been pending for less than 30 days."); Gentille, 2020 U.S. Dist. LEXIS 62680, *9 ("The Court agrees with the Government that § 3582(c)(1)(A)'s exhaustion requirement is not jurisdictional, but rather is a claims-processing rule that the Government can waive by failing to raise an exhaustion argument."). See also Hamer v. Neighborhood Hous. Servs. of Chicago , 138 S. Ct. 13, 17 (2017) (holding that mandatory claim-processing rules "may be waived or forfeited").

[28] United States v. Smith , No. 12-cr-133, 2020 U.S. Dist. LEXIS 64371, *10 (S.D.N.Y. Apr. 13, 2020) (Keenan, J.).

[29] Id. See also Russo, 2020 U.S. Dist. LEXIS 65390, *11-13.

[30] E.g. Smith, 2020 U.S. Dist. LEXIS 64371, *1-2.

[31] E.g. Haney, 2020 U.S. Dist. LEXIS 63971, *21-22; Russo, 2020 U.S. Dist. LEXIS 65390, *21-22.

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