US v. Keller, No. 20-50247 (7-1-21)(Per curiam w/Wardlaw, Gould, & Owens). This is a compassionate release decision. The 9th considers whether CR’s requirement to “fully exhaust” all administrative rights creates a jurisdictional bar or instead imposes a mandatory claim-processing rule. Subject matter jurisdiction can be raised at any time; claim-processing rules promotes the orderly progress of litigation by requiring the taking of procedural tests at specified times.

Joining five other circuits, the 9th holds that CR’s administrative exhaustion requirement imposes a mandatory claim-processing rule that must be enforced when properly invoked. The 9th so holds because (1) the statutory text is clear; and (2) it promotes good policy for orderly processing, disincentivizes line jumping, and allows administrators to prioritize. Bottom-line: CR requires administrative exhaustion.

In this case, the 9th affirmed the district court’s denial of an exhausted claim (filed first); and then the denial of unexhausted claim (filed second, after the denial of the first). It was error for the court not to dismiss for failure to exhaust, but the error was harmless.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/01/20-50247.pdf