                                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,      │
                                                             │
                                                              >        No. 20-1298
        v.                                                   │
                                                             │
                                                             │
 WASEEM ALAM,                                                │
                                 Defendant-Appellant.        │
                                                             │
                                                             ┘

                         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
 No. 20-1298                              United States v. Alam                              Page 2


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
 No. 20-1298                                United States v. Alam                             Page 3


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.
 No. 20-1298                             United States v. Alam                             Page 4


          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.
 No. 20-1298                            United States v. Alam                             Page 5


       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.
 No. 20-1298                            United States v. Alam                             Page 6


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
 No. 20-1298                              United States v. Alam                             Page 7


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.
 No. 20-1298                             United States v. Alam                             Page 8


       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.
