By Hannah Albarazi

Law360 (June 2, 2020, 10:53 PM EDT) -- A Sixth Circuit panel affirmed a Michigan federal judge's decision to toss an elderly and sickly inmate's emergency motion for compassionate release Tuesday, saying in a published opinion that it would not prioritize COVID-19-related requests as it would compromise the orderly processing of applications for early release.

"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," wrote U.S. Circuit Judge Jeffrey S. Sutton, who penned the panel's unanimous decision.

"Free-floating exceptions to the rule, available to anyone willing to go to federal court first, will not help that cause," Judge Sutton wrote.

The circuit panel said that while 64-year-old Waseem Alam, who pled guilty in 2016 to participating in an $8 million Medicare kickback scheme, has "ample reason to fear" that a prison exacerbates the health risks posed by the COVID-19 pandemic, Alam failed to invoke all of the options for obtaining relief from the prison when he moved for compassionate release.

Alam, who suffers from obesity, poorly controlled diabetes, sleep apnea, coronary artery disease, kidney stones and bladder issues, sent a letter to his prison warden requesting compassionate release on March 25, according to the panel.

"But he didn't wait for a response," Judge Sutton wrote.

Alam waited just 10 days before he took his claim to federal court, when he needed to wait the required 30 days.

A Michigan federal judge dismissed Alam's request, citing his failure to comply with the compassionate release statute's administrative exhaustion requirement.

Alam, who has served about half of his roughly eight-year sentence, appealed the decision.

Since Congress crafts the rules regarding statutory exhaustion requirements, the judiciary may only craft exceptions to those rules if asked to do so by Congress, Judge Sutton said.

"Alam asks us to overlook that reality by finding the requirement non-mandatory or by fashioning an exception of our own," the judge wrote.

But Judge Sutton said the court must enforce the mandatory exhaustion requirement.

It serves valuable purposes, Judge Sutton wrote, asserting that there is no other way to ensure an orderly processing of applications for early release.

The Sixth Circuit panel also pointed to an April decision by the Third Circuit finding that a onetime New Jersey city council candidate serving prison time for trying to bribe voters can't get out of jail because of COVID-19 fears because, like Alam, he failed to exhaust the administrative process for compassionate release through the Bureau of Prisons.

Judge Sutton said the Sixth Circuit agrees with the Third Circuit's finding that the prisoner's failure to comply with the administrative exhaustion requirement is a "glaring roadblock foreclosing compassionate release."

The Sixth Circuit panel affirmed the district court's dismissal of Alam's request without prejudice.

The parties did not immediately respond to requests for comment.

Circuit Judges Jeffrey S. Sutton, Deborah L. Cook and Eric E. Murphy sat on the panel for the Sixth Circuit Court of Appeals.

The government is represented by Andrew Goetz of the U.S. Attorney's Office's Appellate Division.

Waseem Alam is represented by Michael R. Dezsi of the Law Office of Michael R. Dezsi PLLC.

The case is United States of America v. Waseem Alam, case number 20-1298, in the U.S. Court of Appeals for the Sixth Circuit.

--Editing by Bruce Goldman.

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