United States v. Saladino

20-1563
United States v. Saladino

In the
United States Court of Appeals
FOR THE SECOND CIRCUIT

AUGUST TERM 2020
No. 20-1563

UNITED STATES OF AMERICA,
Appellee,

v.

ANTHONY SALADINO,
Defendant-Appellant. *

On Appeal from the United States District Court
for the Eastern District of New York

SUBMITTED : MAY 28, 2021
DECIDED: AUGUST 4, 2021

Before: SACK, LYNCH, and MENASHI, Circuit Judges.

Anthony Saladino appeals the district court’s denial of his
motion for compassionate release. Saladino argues that the district
court erred in holding that his failure to satisfy the administrative

* The Clerk of Court is directed to amend the caption as set forth above.
exhaustion requirement in 18 U.S.C. § 3582(c)(1)(A) meant that the
district court lacked jurisdiction to consider his motion. We agree
with Saladino and hold that 18 U.S.C. § 3582(c)(1)(A)’s exhaustion
requirement is not jurisdictional. On appeal, the government
withdraws any defense based on Saladino’s failure to exhaust. In light
of the government’s waiver, we VACATE the decision below and
REMAND for the district court to consider Saladino’s motion on the
merits.

Judge Menashi concurs in a separate opinion.

Artie McConnell (Kevin Trowel, on the brief), Assistant
United States Attorneys, for Seth D. DuCharme, Acting
United States Attorney for the Eastern District of New
York, Brooklyn, New York, for Appellee.

Christopher J. Cassar, The Cassar Law Firm, P.C.,
Huntington, New York, for Defendant-Appellant.

PER CURIAM:

As part of the First Step Act of 2018, Congress authorized courts
to consider an inmate’s motion for a discretionary sentence
modification for “extraordinary and compelling reasons,” often
colloquially called a motion for compassionate release. See Pub. L. No.
115-391, § 603(b), 132 Stat. 5194, 5239 (amending 18 U.S.C.
§ 3582(c)(1)(A)). Previously, a court could grant compassionate
release only upon a motion from the Director of the Bureau of Prisons
(“BOP”). See 18 U.S.C. § 3582(c)(1)(A) (2012). Still, the newly amended
provision permits an inmate to move for compassionate release only

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“after the [inmate] has fully exhausted all administrative rights to
appeal a failure of the Bureau of Prisons to bring a motion on the
[inmate’s] behalf or the lapse of 30 days from the receipt of such a
request by the warden of the [inmate’s] facility, whichever is earlier.”
18 U.S.C. § 3582(c)(1)(A).

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. Because the government has now
withdrawn any defense based on the appellant’s prior failure to
exhaust his administrative remedies in this case, we vacate the district
court’s dismissal of the appellant’s motion for compassionate release
and remand for the district court to consider the motion on the merits.

BACKGROUND

On April 6, 2018, Anthony Saladino pleaded guilty, pursuant
to a plea agreement, to racketeering conspiracy and conspiracy to
distribute over 500 grams of cocaine in violation of 21 U.S.C. §§ 846,
841(b)(1)(B). He was sentenced to a term of 63 months’ imprisonment.

On April 17, 2020, Saladino filed a motion for compassionate
release pursuant to 18 U.S.C. § 3582(c)(1)(A), arguing that given his
medical condition, the threat of COVID-19 justified his early release
from prison. At the hearing on the motion before the district court,
Saladino admitted that he failed to exhaust his administrative
remedies as required by statute. Instead, he asked the district court to
excuse his failure to exhaust. In response, the government argued that
the exhaustion requirement was “non-waivable.” Gov’t App’x 5. The
district court agreed with the government and denied Saladino’s

3
motion “because [Saladino] failed to exhaust [his] administrative
remedies, which are non-waivable.” Gov’t App’x 5-6. Saladino timely
appealed.

On September 3, 2020, while this appeal was pending, Saladino
filed a second motion for compassionate release in the district court,
raising the same arguments as his first motion. This second motion,
however, included additional factual information indicating that
Saladino had taken further steps to exhaust his administrative
remedies. In light of the second motion, the government moved to
dismiss this appeal and remand the case to the district court, arguing
that Saladino’s second motion subsumed his first motion and mooted
the appeal. In response to the government’s motion, Saladino
withdrew his second compassionate release motion in the district
court, which prompted our court to deny the government’s motion as
moot. The government subsequently submitted its merits brief and
informed the court that it has chosen to “withdraw[]” its “affirmative
defense of exhaustion” because it believes that Saladino has now
properly exhausted his administrative remedies. Brief for the United
States 2-3.

STANDARD OF REVIEW

We review the denial of a motion for compassionate release for
abuse of discretion, which incorporates de novo review with respect
to questions of statutory interpretation. See United States v. Holloway,
956 F.3d 660, 664 (2d Cir. 2020); Warren v. Pataki, 823 F.3d 125, 137 (2d
Cir. 2016) (“A district court has abused its discretion if it has (1) based
its ruling on an erroneous view of the law, (2) made a clearly erroneous
assessment of the evidence, or (3) rendered a decision that cannot be

4
located within the range of permissible decisions.”) (emphasis
added).

DISCUSSION

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.

A rule is jurisdictional “[i]f the Legislature clearly states that a
prescription counts as jurisdictional.” Fort Bend Cnty. v. Davis, 139
S. Ct. 1843, 1850 (2019) (alterations omitted). “[B]ut when Congress
does not rank a prescription as jurisdictional, courts should treat the
restriction as nonjurisdictional in character.” Id. (alterations omitted).

The statute governing an inmate’s motion for compassionate
release reads as follows:

(c) Modification of an Imposed Term of
Imprisonment.—The court may not modify a term of
imprisonment once it has been imposed except that—
(1) in any case—
(A) the court, upon motion of the Director of
the Bureau of Prisons, or upon motion of the
defendant after the defendant has fully
exhausted all administrative rights to appeal a
failure of the Bureau of Prisons to bring a motion

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 on the defendant's behalf or the lapse of 30 days
from the receipt of such a request by the warden
of the defendant's facility, whichever is earlier,
may reduce the term of imprisonment
[subject to certain conditions].
18 U.S.C. § 3582 (emphasis added). The italicized language does not
provide a “clear[] state[ment]” setting forth a “jurisdictional”
“prescription.” Fort Bend, 139 S. Ct. at 1850. The “language neither
‘speak[s] in jurisdictional terms’ nor ‘refer[s] in any way to the
jurisdiction’ of the courts.” United States v. Alam, 960 F.3d 831, 833 (6th
Cir. 2020) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394
(1982)). Moreover, the Supreme Court has interpreted a similar
provision in Title VII of the Civil Rights Act of 1964 as
nonjurisdictional. See Fort Bend, 139 S. Ct. at 1846, 1850 (holding that
a court has jurisdiction to consider a Title VII claim even when a
plaintiff fails to comply with the statute’s provision that “a ‘charge ...
shall be filed’ with the EEOC ... within 180 days ‘after the alleged
unlawful employment practice occur[s]’”) (quoting 42 U.S.C. § 2000e-
5(b), (e)(1)). Therefore, like many of our sister circuits, we conclude
that § 3582(c)(1)(A)’s exhaustion requirement is not jurisdictional. See
United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021); United States
v. Gunn, 980 F.3d 1178, 1179 (7th Cir. 2020); United States v. Franco, 973
F.3d 465, 467-68 (5th Cir. 2020); Alam, 960 F.3d at 833.

Not a jurisdictional limitation, § 3582(c)(1)(A)’s exhaustion
requirement is a “claim-processing rule[]” and accordingly “may be
waived or forfeited” by the government. Hamer v. Neighborhood Hous.
Servs., 138 S. Ct. 13, 17, (2017). On appeal, the government has chosen
to “withdraw[]” its “defense of exhaustion” because it believes that
Saladino has now properly exhausted his administrative remedies as

6
§ 3582(c)(1)(A) requires. Brief for the United States 2-3. Thus, the
district court is now free to consider the merits of Saladino’s motion.

The district court may now consider the merits regardless of
whether Saladino has in fact satisfied § 3582(c)(1)(A)’s exhaustion
requirement. Although the government believes that Saladino has
now exhausted his administrative remedies, id. at 2, we 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. 1

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

1 Under this view, Saladino apparently still has not satisfied the statute’s
exhaustion requirement. The record indicates neither that he has taken his
appeal of the warden’s denial of his request for compassionate release to
the BOP General Counsel nor that the BOP has ever taken more than 30
days to respond to his requests.

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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. 2 As explained,
§ 3582(c)(1)(A)’s exhaustion requirement is a “claim-processing
rule[]” and accordingly “may be waived or forfeited.” Hamer, 138
S. Ct. at 17. Because the government no longer asserts the exhaustion
requirement as a defense, Saladino may proceed with his motion even
if he has not complied with that requirement.

2 The circuit courts also appear to be divided on this issue. Compare Gunn,
980 F.3d at 1179 (“[T]he First Step Act created a judicial power to grant
compassionate release on a prisoner’s own request, provided that the
prisoner first allowed the Bureau to review the request and make a
recommendation (or it let 30 days pass in silence).”) (emphasis added), with
Alam, 960 F.3d at 834 (“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.”), and United States v. Harris, 973 F.3d 170, 171
(3d Cir. 2020) (rejecting the argument that “because the Warden denied [the
inmate’s] request within thirty days, [the inmate] was required to
completely exhaust the administrative remedy process” and instead
interpreting § 3582(c)(1)(A) to “state[] that the defendant may file the
motion thirty days after the warden receives his request”). Although we
have not directly addressed this question, at least one district court has
construed language in our decision in United States v. Brooker, 976 F.3d 228
(2d Cir. 2020), as supporting the former position. See United States v. Harris,
505 F. Supp. 3d 1152, 1156 (D. Kan. 2020); see also Brooker, 976 F.3d at 237
(“When the BOP does not timely act or administrative options are exhausted,
‘whichever is earlier,’ discretion to decide compassionate release motions is
to be moved from the BOP Director to the courts.”) (emphasis added).

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 CONCLUSION

For these reasons, we vacate the district court’s decision and
remand with instructions to consider Saladino’s motion on the merits.

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20-1563
United States v. Saladino

MENASHI, Circuit Judge, concurring:

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.
Brief of Defendant-Appellant 11.

Though not a jurisdictional limitation, § 3582(c)(1)(A)’s
exhaustion requirement mandates that before moving for
compassionate release, an inmate must either “fully exhaust[] all
administrative rights to appeal a failure of the Bureau of Prisons to
bring a motion [for compassionate release] on the [inmate’s] behalf”
or show “the lapse of 30 days from the receipt of such a request by the
warden of the [inmate’s] facility.” As at least five other circuit courts
have concluded, § 3582(c)(1)(A) “ranks as a mandatory claim-
processing rule” that, “if properly invoked, ... must be enforced.”
Hamer v. Neighborhood Hous. Servs., 138 S. Ct. 13, 17 (2017); see United
States v. Keller, 2 F.4th 1278, 1282 (9th Cir. 2021); United States v. Houck,
2 F.4th 1082, 1084 (8th Cir. 2021); United States v. Sanford, 986 F.3d 779,
782 (7th Cir. 2021); United States v. Franco, 973 F.3d 465, 467-68 (5th
Cir. 2020); United States v. Alam, 960 F.3d 831, 833 (6th Cir. 2020); see
also Manrique v. United States, 137 S. Ct. 1266, 1272 (2017) (explaining
that “mandatory claim-processing rules ... are unalterable” if “a party
properly raises them”) (internal quotation marks and alteration
omitted). Therefore, contrary to Saladino’s argument, the district
court was not free to excuse his failure to exhaust over the
government’s timely objection.

This result remains obligatory despite the policy and equitable
concerns that Saladino argues the district court should have
considered. While it is true that the Supreme Court has reserved
judgment on whether mandatory claim-processing rules may be
subject to equitable exceptions in general, see Hamer, 138 S. Ct. at 18
n.3, it has decided this question in the specific context of statutory
claim-processing rules that impose exhaustion requirements.
“[M]andatory exhaustion statutes ... establish mandatory exhaustion
regimes, foreclosing judicial discretion,” and courts may not “add
unwritten limits onto their rigorous textual requirements.” Ross v.
Blake, 136 S. Ct. 1850, 1857 (2016). We have also reached the same
conclusion: “Statutory exhaustion requirements are mandatory, and
courts are not free to dispense with them.” Bastek v. Fed. Crop Ins.
Corp., 145 F.3d 90, 94 (2d Cir. 1998).

To be sure, the Supreme Court in McCarthy v. Madigan
recognized that courts may excuse a party’s failure to exhaust when
requiring exhaustion would be futile or would subject an individual
to undue prejudice. See 503 U.S. 140, 146-49 (1992). But those
exceptions apply only in the context of “judge-made exhaustion
doctrines.” Blake, 136 S. Ct. at 1857; see also Bastek, 145 F.3d at 94
(“Common law (or ‘judicial’) exhaustion doctrine ... recognizes
judicial discretion to employ a broad array of exceptions.”). By
contrast, when “Congress has mandated exhaustion”—as it has with
§ 3582(c)(1)(A)—a court may “not read futility or other exceptions
into [that] statutory exhaustion requirement[].” Booth v. Churner, 532
U.S. 731, 741 n.6 (2001); see also Blake, 136 S. Ct. at 1857; Porter v. Nussle,
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534 U.S. 516, 524 (2002) (observing that the Prison Litigation Reform
Act requires that “[a]ll ‘available’ remedies must ... be exhausted”
before a prisoner brings a claim under 42 U.S.C. § 1983 and holding
that “those remedies need not ... be plain, speedy, and effective”)
(internal quotation marks omitted); Bastek, 145 F.3d at 94.

Therefore, as a number of other circuit courts have recognized,
once the government “properly invoked” Saladino’s failure to comply
with § 3582(c)(1)(A)’s mandatory exhaustion requirement, Hamer, 138
S. Ct. at 17, the district court had no discretion to excuse that failure
regardless of any equitable considerations. See Houck, 2 F.4th at 1084-
85; Alam, 960 F.3d at 835; see also United States v. McGreggor, No. 20-
10165, 2020 WL 9602344, at *1 (9th Cir. Oct. 26, 2020); United States v.
Johnson, 849 F. App’x 750, 752-53 (10th Cir. 2021). “Faced with
unambiguous statutory language requiring exhaustion of
administrative remedies, ‘[the court was] not free to rewrite the
statutory text.’” Bastek, 145 F.3d at 94 (quoting McNeil v. United States,
508 U.S. 106, 111 (1993)).

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

1 See, e.g., United States v. Delgado, 457 F. Supp. 3d 85, 91 (D. Conn. 2020);
United States v. McCarthy, 453 F. Supp. 3d 520, 525 (D. Conn. 2020); United
States v. Perez, 451 F. Supp. 3d 288, 291-92 (S.D.N.Y. 2020); United States v.
Colvin, 451 F. Supp. 3d 237, 239-40 (D. Conn. 2020); United States v. Gileno,
455 F. Supp. 3d 1, 5-6 (D. Conn. 2020); United States v. Russo, 454 F. Supp. 3d
270, 274-78 (S.D.N.Y. 2020); United States v. Bess, 455 F. Supp. 3d 53, 61-62
(W.D.N.Y. 2020); United States v. Haney, 454 F. Supp. 3d 316, 320-21
(S.D.N.Y. 2020); United States v. Sawicz, 453 F. Supp. 3d 601, 604 (E.D.N.Y.
2020); United States v. Zukerman, 451 F. Supp. 3d 329, 332-33 (S.D.N.Y. 2020);

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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). 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 (1982)); see also McCarthy, 503 U.S.

United States v. Scparta, No. 18-CR-578, 2020 WL 1910481, at *8 (S.D.N.Y.
Apr. 20, 2020). Other district courts have rightly concluded, like the district
court here, that a court may not excuse an inmate’s failure to comply with
§ 3582(c)(1)(A)’s exhaustion requirement if the government properly
invokes it. See, e.g., United States v. Woodson, 452 F. Supp. 3d 31, 34-36
(S.D.N.Y. 2020); United States v. Hossain, 465 F. Supp. 3d 114, 117-18
(N.D.N.Y. 2020); United States v. Schultz, 454 F. Supp. 3d 217, 223-24
(W.D.N.Y. 2020); United States v. Hart, No. 17-CR-248, 2020 WL 1989299, at
*4 (S.D.N.Y. Apr. 27, 2020); United States v. Smith, No. 3:16-CR-48, 2020 WL
1903160, at *3 (D. Conn. Apr. 17, 2020); United States v. Ogarro, No. 18-CR-
373-9, 2020 WL 1876300, at *3-5 (S.D.N.Y. Apr. 14, 2020); United States v.
Roberts, No. 18-CR-528-5, 2020 WL 1700032, at *2 (S.D.N.Y Apr. 8, 2020).

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at 144 (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). 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.

The district court in this case denied Saladino’s motion for
compassionate release “because [Saladino] failed to exhaust [his]
administrative remedies, which are non-waivable.” Gov’t App’x 5-6.
Section 3582(c)(1)(A), however, does not impose a jurisdictional
limitation, and to extent the district court held otherwise, it erred. But
although § 3582(c)(1)(A)’s exhaustion requirement is not
jurisdictional, it remains a mandatory claim-processing rule that is
not subject to equitable exceptions. The district court thus correctly
determined that it lacked discretion to excuse Saladino’s failure to
exhaust over the government’s objection. Only now that the
government has changed its position—and withdrawn its objection to
Saladino’s failure to exhaust—may the district court consider
Saladino’s motion on the merits.

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