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August 5, 2021: COMPASSIONATE RELEASE and BOP COVID-19 BLOG



Quick Facts: Currently positive-testing inmates: 293 (up from 260) Currently positive-testing staff: 211 (up from 187) Recovered inmates: 42,950 (down from 43,012) Recovered staff: 7,047 (up from 7,038) Institutions with the largest number of currently positive-testing inmates:

Texarcana FCI: 76 (unchanged)

McCreary USP: 35

Miami FDC: 25 (down from 27)

Institutions with the largest number of currently positive-testing staff:

Pollock: 20 (up from 17)

Coleman I USP: 9 (unchanged)

Coleman II USP: 8

System-wide testing results: Presently, BOP has 130,497 federal inmates in BOP-managed institutions and 14,428 in community-based facilities. Today's stats: Completed tests: 118,800 (up from 118,732) Positive tests: 42,698 (down from 42,722)

Total Vaccine doses distributed: 206,521

Case Note: 30-day rule is a claims processing rule, waivable with government consent, not a non-waivable jurisdictional rule...


In U.S. v. Saladino, No. 20-1563, 2021 WL 3376973 (2d Cir. Aug. 4, 2021) (per curiam), the Second Circuit clarifies that the exhaustion requirement for compassionate release applications is a claims-processing rule, waivable with government consent, but declines to address whether the lapse of 30-days satisfies exhaustion where the BOP replies within 30-days, explaining: “Today we clarify that this exhaustion requirement is not a jurisdictional limitation on a court's power to consider an inmate's motion for compassionate release. Rather, § 3582(c)(1)(A)’s exhaustion requirement is a claim-processing rule that may be waived or forfeited by the government. … Saladino challenges the district court's conclusion that the exhaustion requirement in § 3582(c)(1)(A) is “non-waivable.” Gov't App'x 5-6. To the extent that the district court intended to hold that it lacked jurisdiction to consider Saladino's motion due to his failure to exhaust, that was error. The exhaustion requirement in § 3582(c)(1)(A) is not a jurisdictional limitation. Therefore, in light of the government's decision to withdraw its objection to Saladino's failure to exhaust, the district court may now consider Saladino's motion on the merits, and we remand for it to do so. …2, [W]e note that district courts in this circuit have split on how to interpret the statute's provision permitting an inmate to move for a sentence reduction “after ... the lapse of 30 days from the receipt” by the warden of an inmate's request for the BOP to move on his behalf, 18 U.S.C. § 3582(c)(1)(A). Some district courts have held that the provision authorizes an inmate to file a motion only after he has “waited 30 days from the Warden's receipt of his request for compassionate release without receiving a response.” United States v. Samuels, No. 08-CR-789-6, 2020 WL 7696004, at *3 (S.D.N.Y. Dec. 28, 2020) (emphasis added). But if the BOP timely responds to the inmate's request for compassionate release, the inmate must “ ‘satisfy the same exhaustion procedure’ that applies to ‘routine administrative grievances,’ ” which would “include[ ] appeals to both the appropriate Regional Director and the BOP General Counsel.” Id. Other district courts, however, have held that the statute's 30-day waiting period authorizes the inmate's filing a motion regardless of whether the warden responds to the inmate's request for compassionate release. Under this view, an inmate must “either ... exhaust administrative remedies or simply ... wait 30 days after serving his petition on the warden of his facility before filing a motion in court.” United States v. Haney, 454 F. Supp. 3d 316, 321 (S.D.N.Y. 2020). We need not decide whether Saladino has actually satisfied the exhaustion requirement in this appeal. …

Judge Menashi concurs, opining: Having determined that the exhaustion requirement codified at 18 U.S.C. § 3582(c)(1)(A) does not impose a jurisdictional limitation, the court properly remands this case to the district court in light of the government's decision to waive any objection based on Saladino's failure to exhaust. I write separately to address Saladino's argument that, in addition to wrongly deciding that § 3582(c)(1)(A)’s exhaustion requirement is jurisdictional, the district court also erred by failing to invoke “equitable considerations such as ... futility” and to excuse Saladino's failure to satisfy the exhaustion requirement on that basis. … Unlike the district court in this case, other district courts in this circuit have erroneously determined that a court may excuse an inmate's failure to comply with § 3582(c)(1)(A)’s exhaustion requirement over the government's timely objection.1 Some of those district courts have relied on our court's decision in Washington v. Barr, 925 F.3d 109 (2d Cir. 2019). See e.g., Perez, 451 F. Supp. 3d at 291-92. It is true that Washington states that McCarthy’s exceptions apply “where exhaustion is seemingly mandated by statute,” Washington, 925 F.3d at 118, but that is not equivalent to a statement that those exceptions apply where exhaustion is expressly mandated by a statute's text. The latter statement would be contrary to the Supreme Court's decisions in Blake, Nussle, and Booth and to our court's decision in Bastek—decisions that Washington did not, and could not, purport to overrule. Rather, our court in Washington, like the Supreme Court in McCarthy, addressed when a court may “impose” an exhaustion requirement “as an act of ‘sound judicial discretion.’ ” Id. at 116 (quoting McCarthy, 503 U.S. at 144, 112 S.Ct. 1081). In exercising that discretion and imposing an exhaustion requirement in that case, we were “guided by congressional intent” and the “legislative purpose” of the federal statute under which the plaintiffs sued. Id. (quoting Patsy v. Bd. of Regents, 457 U.S. 496, 501-02 & n.4, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982)); see also McCarthy, 503 U.S. at 144, 112 S.Ct. 1081 (providing that when “a federal court ... fashion[s] ... exhaustion principles” it must do so “in a manner consistent with congressional intent and any applicable statutory scheme”) (citing Patsy, 457 U.S. at 502 n.4, 102 S.Ct. 2557). We referenced this idea—of a judicially created exhaustion requirement guided by congressional intent—when we said that McCarthy’s exceptions apply “where exhaustion is seemingly mandated by statute.” Washington, 925 F.3d at 118 (emphasis added). Those exceptions do not apply, however, where—as here—“Congress has [itself] mandated exhaustion” and has not provided for any such exceptions. Booth, 532 U.S. at 741 n.6, 121 S.Ct. 1819.”

Death Watch: The BOP has identified no new COVID-19 fatalities. Inmate fatalities remain at 242. Five of these inmates died while on home confinement. Staff fatalities remain at 4.



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