United States v. William Welsh , 879 F.3d 530 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6355
UNITED STATES OF AMERICA,
Petitioner − Appellee,
v.
WILLIAM CARL WELSH,
Respondent – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:11-hc-02209-D)
Argued: September 20, 2017 Decided: January 12, 2018
Before DUNCAN, DIAZ, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Duncan
joined. Judge Thacker wrote a dissenting opinion.
ARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Michael Lockridge, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P.
McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
DIAZ, Circuit Judge:
In January 2011, William Carl Welsh pleaded guilty in an Oregon federal district
court to failing to comply with the Sex Offender Registration and Notification Act
(“SORNA”) and was sentenced to 673 days in the custody of the Bureau of Prisons. Welsh
admitted that he had not updated his sex offender registration in Oregon when he left the
state to move to Belize. While in the custody of the Bureau of Prisons for that offense,
Welsh was certified as a sexually dangerous person and civilly committed under § 4248 of
Title 18, enacted by the Adam Walsh Child Protection and Safety Act of 2006.
The Supreme Court later held in a different case that the version of SORNA then
applicable to Welsh’s offense did not require a sex offender to update his registration in
his former homestate after moving to a foreign country. As a result, Welsh successfully
moved to have his SORNA conviction vacated. He then sought relief from his civil
commitment. Welsh claimed that the judgment was void under Federal Rule of Civil
Procedure 60(b)(4) because he was never in the legal custody of the Bureau of Prisons. He
also sought relief under Rules 60(b)(5) and 60(b)(6) because his civil commitment was
based on a now-vacated conviction.
Because Welsh’s civil commitment judgment is not void under Rule 60(b)(4) and
the district court had discretion to deny relief under Rules 60(b)(5) and 60(b)(6), we affirm.
I.
Before explaining our decision, we provide additional details of the unusual events
giving rise to this appeal.
2
A.
As we noted earlier, Welsh pleaded guilty to failing to update his registration as a
sex offender as required by SORNA, 18 U.S.C. § 2250(a). While Welsh was confined for
that offense, the government certified him as a “sexually dangerous person” and transferred
him to the Butner Federal Correctional Institution in North Carolina.
Such a certification stayed Welsh’s release pending a hearing to determine whether
he was a sexually dangerous person. 18 U.S.C. § 4248(a). Under federal law, a person is
a “sexually dangerous person” if he has “engaged or attempted to engage in sexually
violent conduct or child molestation and . . . is sexually dangerous to others.” 18 U.S.C. §
4247(a)(5). A person is sexually dangerous to others if he “suffers from a serious mental
illness, abnormality, or disorder as a result of which he would have serious difficulty in
refraining from sexually violent conduct or child molestation if released.” 18 U.S.C. §
4247(a)(6). If, after a hearing, “the court finds by clear and convincing evidence that the
person is a sexually dangerous person, the court shall commit the person to the custody of
the Attorney General.” 18 U.S.C. § 4248(d).
The U.S. District Court for the Eastern District of North Carolina found Welsh to
be a sexually dangerous person and ordered him committed. The court’s determination
rested largely on Welsh’s criminal history, which includes repeated convictions for child
molestation, sodomy, and sexual abuse dating back to 1979. The court also “considered
Welsh’s poor performance on supervision, including his absconding to Belize.” J.A. 59.
And the court relied on testimony from two experts who, after evaluating Welsh, concluded
that he met the criteria for civil commitment.
3
Welsh remains committed at the Butner Federal Correctional Institution. Pursuant
to 18 U.S.C. § 4247(e)(B), the director of the facility provides the district court with an
annual report on Welsh’s mental condition and whether his commitment should continue.
Most recently, in Welsh’s 2017 annual report, a forensic psychologist concluded that
Welsh “continues to suffer from a severe mental illness, abnormality, or disorder that
would cause him to experience serious difficulty in refraining from sexually violent
conduct or child molestation if he was released to the community” and that “[t]herefore,
discharge or conditional release is not recommended at this time.” J.A. 149.
B.
In 2016, the Supreme Court decided in Nichols v. United States that SORNA—
before it was amended in February 2016—did not require a person to update his registration
in a state that he was leaving in order to travel to a foreign country. 136 S. Ct. 1113, 1118
(2016). As a result, a federal district court in Oregon granted Welsh’s motion to vacate his
conviction for violating SORNA, concluding that “the factual basis for the guilty plea . . .
did not constitute a federal crime.” J.A. 73‒74.
With vacatur in hand, Welsh moved for relief from his civil commitment judgment
in the Eastern District of North Carolina, pursuant to Federal Rules of Civil Procedure
60(b)(4), (b)(5), and (b)(6). The district court denied the motion. We review denial of a
Rule 60(b)(4) motion de novo. Wendt v. Leonard, 431 F.3d 410, 412 (4th Cir. 2005).
Denial of a Rule 60(b)(5) or 60(b)(6) motion is reviewed for abuse of discretion. MLC
Auto, LLC v. Town of S. Pines, 532 F.3d 269, 277 (4th Cir. 2008).
4
II.
To obtain relief from a judgment under Rule 60(b), a moving party must first show
(1) that the motion is timely, (2) that he has a meritorious claim or defense, and (3) that the
opposing party will not suffer unfair prejudice if the judgment is set aside. Nat'l Credit
Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993). The party must also satisfy
one of six enumerated grounds for relief under Rule 60(b). Id. at 266.
A.
In this case, Welsh sought relief under Rules 60(b)(4), (b)(5), and (b)(6). We start
with Welsh’s claim under Rule 60(b)(4), which allows relief from a judgment that is void.
The rule applies “only in the rare instance where a judgment is premised either on a certain
type of jurisdictional error or on a violation of due process that deprives a party of notice
or the opportunity to be heard.” U.S. Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,
271 (2010).
Federal courts reserve relief under Rule 60(b)(4) “for the exceptional case in which
the court that rendered judgment lacked even an ‘arguable basis’ for jurisdiction.” Id.
When deciding whether an order is “void” under Rule 60(b)(4), “courts must look for the
rare instance of a clear usurpation of power,” which is “only when there is a total want of
jurisdiction and no arguable basis on which it could have rested a finding that it had
jurisdiction.” Wendt, 431 F.3d at 413 (internal quotation marks omitted).
Under the Adam Walsh Act, the government may certify a person as a sexually
dangerous person if they: (1) are in the custody of the Bureau of Prisons; (2) have been
committed to the custody of the Attorney General pursuant to section 4241(d); or (3) have
5
had all criminal charges dismissed against them solely for reasons relating to their mental
condition. 18 U.S.C. § 4248(a). Welsh was certified as a sexually dangerous person under
the first category.
Welsh, however, argues that he was never in the legal custody of the Bureau of
Prisons because (as the Supreme Court announced in Nichols) he never actually committed
a crime by failing to register. As a result, he says, the district court lacked subject matter
jurisdiction to commit him and its judgment is therefore void. The district court rejected
Welsh’s argument, holding that § 4248(a)’s custody provision is not jurisdictional, and
even if it were, Welsh was in the legal custody of the Bureau of Prisons when he was
certified as a sexually dangerous person. We agree.
Specifically, the district court was correct in concluding that § 4248(a)’s custody
requirement is not jurisdictional but rather is an element of a civil commitment claim. We
begin with first principles. Jurisdiction refers to “a court’s adjudicatory authority.”
Kontrick v. Ryan, 540 U.S. 443, 455 (2004). “[J]urisdictional statutes speak to the power
of the court rather than to the rights or obligations of the parties.” Landgraf v. USI Film
Prods., 511 U.S. 244, 274 (1994) (internal quotation marks omitted).
In Arbaugh v. Y & H Corp., the Supreme Court explained how to distinguish
“jurisdictional” conditions from mere elements of a claim:
If the Legislature clearly states that a threshold limitation on a statute’s scope
shall count as jurisdictional, then courts and litigants will be duly instructed
and will not be left to wrestle with the issue. But when Congress does not
rank a statutory limitation on coverage as jurisdictional, courts should treat
the restriction as nonjurisdictional in character.
6
546 U.S. 500, 515–16 (2006) (internal citation omitted); see also Reed Elsevier, Inc. v.
Muchnick, 559 U.S. 154, 163 (2010). Because nothing in the text of § 4248(a)’s custody
requirement suggests that it’s a limit on the court’s jurisdiction, we think it appropriate to
treat it as a mere element of a civil commitment claim.
Welsh contends otherwise, arguing that the government’s authority to civilly
commit is constitutional only because of the custody requirement. We accept that premise,
but the fact that an element of a claim is constitutionally required does not mean that it is
jurisdictional. See United States v. Williams, 341 U.S. 58, 66 (1951) (“Even the
unconstitutionality of the statute under which the proceeding is brought does not oust a
court of jurisdiction.”).
Welsh insists that we’ve previously recognized the custody requirement as
jurisdictional, citing United States v. Joshua, 607 F.3d 379, 388 (4th Cir. 2010), and United
States v. Savage, 737 F.3d 304, 307 (4th Cir. 2013). See Appellant’s Br. at 30; Reply Br.
at 7. But Joshua doesn’t say that § 4248(a)’s custody requirement is a limit on jurisdiction
and Savage uses the term “jurisdictional authority” in passing. In short, neither case lends
Welsh the support he ascribes to them.
Welsh also claims that § 4248(g) of the Adam Walsh Act confirms the importance
of the custody requirement to the federal government’s authority to civilly commit a
person. The provision states that if a facility director “certifies to the Attorney General that
a person, against whom all charges have been dismissed for reasons not related to the
7
mental condition of the person, is a sexually dangerous person, the Attorney General shall
release the person . . . .” 1 18 U.S.C. § 4248(g).
We are not persuaded that this provision has anything to say about whether the
custody requirement is a limit on the district court’s jurisdiction. See, e.g., Henderson ex
rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011) (stating that “[o]ther rules” that don’t
govern a court’s adjudicatory capacity, “even if important and mandatory . . . should not
be given the jurisdictional brand.”). In any event, whether or not the custody requirement
is jurisdictional, Welsh was in the custody of the Bureau of Prisons when he was certified
as a sexually dangerous person. This is so because at the time of his certification Welsh
was still serving a prison sentence pursuant to a court order committing him “to the custody
of the United States Bureau of Prisons.” J.A. 22.
Welsh, relying on Joshua and United States v. Comstock, 560 U.S. 126 (2010),
argues that a person can never be in the Bureau’s “legal custody” if his underlying
conviction is subsequently vacated. These cases do not support Welsh’s premise. Joshua,
for example, involved a military court-martial of an Army officer. 607 F.3d at 381. That
officer was eventually transferred from an Army garrison to the Butner Federal
Correctional Institution. Id. There, the Bureau of Prisons housed the officer pursuant to a
Memorandum of Agreement with the Army stating that military prisoners transferred to
federal prison remain in the “permanent custody” of the U.S. Army. Id. at 382. When the
1
Because Welsh does not seek relief pursuant to § 4248(g), we do not decide
whether this provision could apply to someone like Welsh who was certified as a sexually
dangerous person before his underlying criminal conviction was dismissed.
8
government petitioned to civilly commit the officer as a sexually dangerous person, the
district court dismissed the petition and we affirmed because the officer was not in the
“legal custody” of the Bureau of Prisons as required by the Adam Walsh Act. Id. at 391.
By contrast, Welsh was in the “legal custody” of the Bureau of Prisons as the term
is interpreted in Joshua. Unlike the petitioner in Joshua, Welsh was “placed in the BOP’s
custody by statutory authority, not as a matter of convenience.” See Savage, 737 F.3d at
307. And because the Bureau of Prisons was solely responsible for Welsh’s “custody, care,
subsistence, education, treatment and training” it had “legal custody”—not mere physical
custody—over Welsh. See id. at 308‒09.
This interpretation of “legal custody” is also consistent with the Supreme Court’s
decision in Comstock. There, the question was whether Congress had the constitutional
authority to authorize federal civil commitment under § 4248. Comstock, 560 U.S. at 129‒
30. The Court held that § 4248 does not give the federal government an unconstitutional
general policing power, but rather, is “a reasonably adapted and narrowly tailored means
of pursuing the Government’s legitimate interest as a federal custodian in the responsible
administration of its prison system.” Id. at 148.
Comstock, while certainly important, does not help Welsh because the constitutional
justification for federal civil commitment is rooted in the federal government’s role as
custodian, not in an underlying criminal conviction. As the Court explained, the Adam
Walsh Act is a constitutional means of ensuring the safe and responsible administration of
federal prisons because “at common law, one ‘who takes charge of a third person’ is ‘under
a duty to exercise reasonable care to control’ that person to prevent him from causing
9
reasonably foreseeable ‘bodily harm to others.’” Id. at 142 (quoting Restatement (Second)
of Torts § 319 (Am. Law Inst. 1965)). The Court likened civil commitment of a sexually
dangerous person to a situation where a prisoner is infected by a communicable disease.
In such a scenario, it would be necessary and proper for the government not to release that
individual pursuant to its role as federal custodian. Id. at 142-43.
The government’s interest in ensuring it doesn’t release dangerous individuals into
society exists whenever it asserts legal custody over a person, even if the underlying
conviction is ultimately vacated. Nor does the government’s constitutional authority to
civilly commit depend solely on a criminal conviction because the Adam Walsh Act also
authorizes the government to civilly commit individuals deemed incompetent to stand trial
or for whom all criminal charges have been dismissed for reasons relating to their mental
condition. See 18 U.S.C. § 4248(a).
Thus, regardless of whether § 4248(a)’s custody provision is jurisdictional, Welsh
was in the legal custody of the Bureau of Prisons at the time the government certified him
as a sexually dangerous person. The civil commitment judgment is therefore not void.
B.
We turn now to Welsh’s argument that the district court abused its discretion by
denying him relief under Rules 60(b)(5) and 60(b)(6). Welsh’s burden here is a heavy one,
as a district court abuses its discretion only where it “has acted arbitrarily or irrationally[,]
. . . has failed to consider judicially recognized factors constraining its exercise of
discretion, or when it has relied on erroneous factual or legal premises.” L.J. v. Wilbon,
10
633 F.3d 297, 304 (4th Cir. 2011) (alteration in original) (internal quotation marks
omitted). The district court did nothing of the sort here.
Rule 60(b) states that a court “may” exercise its power to vacate a judgment under
certain circumstances. The remedy though “is extraordinary and is only to be invoked
upon a showing of exceptional circumstances.” Compton v. Alton S.S. Co., 608 F.2d 96,
102 (4th Cir. 1979). In determining whether to grant relief from judgment under 60(b), a
district court must delicately balance “the sanctity of final judgments, expressed in the
doctrine of res judicata, and the incessant command of the court’s conscience that justice
be done in light of [a]ll the facts.” Id. at 102 (internal quotation marks omitted).
A district court may grant relief under Rule 60(b)(5) if “[1] the judgment has been
satisfied, released or discharged; [2] it is based on an earlier judgment that has been
reversed or vacated; or [3] applying it prospectively is no longer equitable.” 2 In this case,
the district court first rejected Welsh’s claim for relief under the rule’s “no longer equitable
clause” which allows for relief from a judgment if “a significant change either in factual
conditions or in law renders continued enforcement detrimental to the public interest.”
Horne v. Flores, 557 U.S. 433, 447 (2009) (internal quotation marks omitted). The court
held that although there was a change in circumstances, the public nonetheless had a
2
The court may also grant relief under Rule 60(b)(6) for “any other reason” when
there are “extraordinary circumstances” and “the reason for relief from judgment does not
fall within the list of enumerated reasons given in Rule 60(b)(1)‒(5).” Aikens v. Ingram,
652 F.3d 496, 500 (4th Cir. 2011). Like the district court, we conclude that Rule 60(b)(6)
does not apply because Welsh’s claim falls under the more specific Rule 60(b)(5).
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substantial countervailing interest in Welsh’s continued commitment. 3 In doing so, the
district court properly characterized Welsh’s argument, applied the appropriate legal
standard, and considered the fact that Welsh no longer stands convicted of violating
SORNA.
The district court then turned to Welsh’s claim under Rule 60(b)(5)’s second clause,
which allows for relief from judgment when it is “based on an earlier judgment that has
been reversed or vacated.” The district court acknowledged that it had discretion to grant
Welsh relief, but noted that Welsh’s now-vacated conviction played a very minor role in
the substantive decision to commit Welsh and that there was “clear and convincing
evidence well beyond the mere fact of Welsh’s 2011 judgment in the District of Oregon”
to support his civil commitment. J.A. 113. The court also discussed a range of factors,
including Welsh’s interest in release, the courts’ interest in finality of judgments, and the
public interest in Welsh’s continued confinement. It weighed the factors and (in our view)
made a reasonable decision not to grant relief under Rule 60(b)(5).
3
The dissent takes issue with the district court’s weighing of the public interest,
citing to our decision in Valero Terrestrial Corp. v. Paige, where we stated that
“considerations of relative fault and public interest are irrelevant to the inquiry for
modification or vacatur of an injunction under Rule 60(b)(5) on the grounds of a significant
change in fact or law.” 211 F.3d 112, 122 (4th Cir. 2000). The Supreme Court, however,
has expressly considered the public interest in this context. See Horne, 557 U.S. at 447;
Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 384, 392 (1992). Moreover, Rule
60(b)(5) by its terms expressly directs a district court to make an equitable determination,
which by definition requires consideration of the various interests at stake. That is
precisely what the district court did here.
12
Welsh argues that the district court failed to appreciate that he would never have
been committed but for the now-vacated conviction. That claim, however, does no more
than state the predicate for granting relief under the “reversed or vacated” provision of Rule
60(b)(5). Welsh also characterizes civil commitment as punishment for a crime. Civil
commitment though is not a form of retribution, but instead aims to incapacitate. See
Kansas v. Hendricks, 521 U.S. 346, 362 (1997) (finding that a state civil commitment
statute is “not retributive because it does not affix culpability for prior criminal conduct,”
but rather “such conduct is used solely for evidentiary purposes, either to demonstrate that
a ‘mental abnormality’ exists or to support a finding of future dangerousness”). Welsh’s
allegation of unfairness—that he shouldn’t be committed because he didn’t commit a
crime—can be levied against any form of civil commitment. But of course the Adam
Walsh Act expressly authorizes the civil commitment of individuals who were never
convicted of a crime. See 18 U.S.C. § 4248(a).
Welsh also says that the district court erred in not granting relief because he has
avoided any infractions over the past year; he refused to participate in a treatment program
for sex offenders only on advice of counsel; and he would be subject to significant reporting
requirements if released. But the district court considered these facts and nonetheless
found a strong public interest in Welsh’s continued confinement given the Bureau of
Prisons’s forensic psychologists’ reports that (1) cast doubt on the progress Welsh had
made and (2) concluded that he would “have serious difficulty refraining from acts of
sexual violence or child molestation if released.” J.A. 114.
13
In sum, the district court weighed carefully the competing interests, in light of all
the facts, and reasonably determined that Welsh should remain civilly committed. We
decline to upset the court’s considered judgment.
III.
For the reasons given, we affirm in all respects the district court’s judgment.
AFFIRMED
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THACKER, Circuit Judge, dissenting:
The majority affirms a district court order denying relief to an individual who has
spent the last seven years in federal custody without a valid conviction. I respectfully
dissent.
I.
A.
The Adam Walsh Act permits the government to subject “sexually dangerous”
persons in the custody of the Bureau of Prisons to indefinite civil commitment. 18 U.S.C.
§ 4248(a). The Supreme Court upheld the Adam Walsh Act as a “‘necessary and proper’
means of exercising the federal authority that permits Congress to create federal criminal
laws, to punish their violation, to imprison violators, to provide appropriately for those
imprisoned, and to maintain the security of those who are not imprisoned but who may be
affected by the federal imprisonment of others.” United States v. Comstock, 560 U.S. 126,
149 (2010). In short, the Adam Walsh Act is intrinsically tied to Congress’s authority to
criminalize conduct. This nexus has constitutional implications. In affirming the civil
commitment of an individual who has not engaged in criminal conduct, the majority
disregards that constitutional nexus.
B.
After the district court vacated the criminal conviction upon which his civil
commitment was based, Appellant William Carl Welsh moved for relief from the civil
commitment order pursuant to Rule 60 of the Federal Rules of Civil Procedure. Before the
district court, Welsh argued he was entitled to relief pursuant to Rules 60(b)(4), 60(b)(5),
15
and 60(b)(6). For the reasons aptly set forth in the majority opinion, I agree that Welsh is
not entitled to relief under 60(b)(4)’s “void” judgment clause or 60(b)(6)’s “any other
reason” provision. However, in my view, Welsh’s civil commitment order fits squarely
within the purview of Rule 60(b)(5), which provides relief where “the judgment . . . is
based on an earlier judgment that has been reversed or vacated[,] or applying [the
judgment] prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5).
II.
A.
The “Reversed or Vacated” Clause
Pursuant to the second clause of Rule 60(b)(5), district courts have discretion to
grant a party relief from a civil judgment if “the judgment . . . is based on an earlier
judgment that has been reversed or vacated.” Fed. R. Civ. P. 60(b)(5). This provision
applies where an earlier reversed or vacated “judgment itself [was] necessarily considered
in [the] later action.” Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984). Here, the district
court acknowledged that Welsh’s civil commitment “necessarily considered” his
conviction because, absent the conviction, “the BOP would not have had legal custody”
over Welsh at the time of the civil commitment hearing. J.A. 106–07.
In my view, the district court abused its discretion by not affording relief in this
instance. Appellant’s civil commitment judgment, resting on his now vacated conviction,
fits so squarely within Rule 60(b)(5)’s “reversed or vacated” clause that I believe it is
plainly an abuse of discretion to deny his motion. Reversal is justified on this basis alone.
16
The district court further abused its discretion by improperly weighing the relevant
considerations. Having assumed that Rule 60(b)(5)’s “reversed or vacated” clause applied
to Welsh, the district court was tasked with determining whether it would exercise its
discretion to grant relief. In doing so, the district court weighed “the sanctity of final
judgments” against “the incessant command of the court’s conscience that justice be done
in light of [a]ll the facts.” Compton v. Alton S.S. Co., 608 F.2d 96, 102 (4th Cir. 1979)
(internal quotation marks omitted). The district court, noting the thoroughness of the civil
commitment proceeding in this case, chose to place emphasis on the sanctity of final
judgments over justice. Per the district court, vacating the judgment would offend the
efforts and resources committed to those proceedings.
But the sanctity of the final civil commitment order cannot bear the weight the
district court gives it for at least three reasons. First, civil commitment is indefinite by
nature. See 18 U.S.C. § 4248(e). The operative finding in a civil commitment hearing --
that the individual is sexually dangerous -- is subject to reaffirmation by government
officials on an annual basis. See id. § 4247(e)(1)(B). Therefore, finality is not as pressing
a concern. Second, vacatur in this case poses little threat to future final judgments. Civil
commitment “has been applied to only a small fraction of federal prisoners.” Comstock,
560 U.S. at 148. Indeed, the district court was “unaware” of any other individual in
Welsh’s “unusual predicament.” J.A. 114. Third, Welsh’s “final judgment” is predicated
on a vacated conviction. My conscience dictates that such a judgment cannot be treated as
sacrosanct.
17
Against the sanctity of final judgments, the district court weighs the “command . . .
that justice be done in light of [a]ll the facts.” Compton, 608 F.2d at 102. The district court
placed emphasis on Welsh’s status as a sexually dangerous person. While I certainly credit
the government’s interest in protecting the public from such danger, vacating Welsh’s civil
commitment judgment would not leave this interest unaddressed. Welsh would still be
subject to SORNA reporting requirements. 1 Indeed, this is precisely how Congress chose
to strike the balance between protecting the public and preserving fundamental freedoms
of those in Welsh’s position. See 34 U.S.C. § 20901 (establishing “a comprehensive
national system for the registration of . . . offenders” so as “to protect the public from sex
offenders and offenders against children.”).
B.
The Prospective Application Clause
The district court also abused its discretion in denying Appellant’s motion on
equitable grounds. Pursuant to the third clause of Rule 60(b)(5), district courts may grant
relief from a judgment if applying it prospectively is no longer equitable in light of “a
significant change either in factual conditions or in law.” Rufo v. Inmates of Suffolk Cty.
Jail, 502 U.S. 367, 384 (1992); see also Fed. R. Civ. P. 60(b)(5). “The party seeking relief
1
Counsel for the government acknowledged “[Welsh] would be subject to SORNA
[upon release], is my understanding.” Oral Argument at 22:00, United States v. Welsh, No.
17-6355 (4th Cir. Sept. 20, 2017), http://www.ca4.uscourts.gov/oral-argument/listen-to-
oral-arguments. Indeed, it appears from the record that Welsh’s past convictions qualify
him as a tier III sex offender. See 34 U.S.C. § 20911(4); J.A. 31. Tier III offenders are
subject to SORNA registration requirements for life. 34 U.S.C. § 20915.
18
bears the burden of establishing that changed circumstances warrant relief, but once a party
carries this burden, a court abuses its discretion when it refuses to modify [the judgment]
in light of such changes.” Horne v. Flores, 557 U.S. 433, 447 (2009) (citation and internal
quotation marks omitted).
Here, the district court concluded that Welsh failed to meet this burden. While the
district court acknowledged that Welsh “no longer stands convicted” of the underlying
offense upon which his civil commitment was based, the court nonetheless dismissed that
concern by relying entirely upon the public’s interest in Welsh’s “continued commitment
. . . on the basis of [his] sexual dangerousness.” J.A. 104. This analysis is inappropriate
and illogical.
As a preliminary matter, we have declined to engage in a “broad, open-ended
equitable balancing test” in the context of Rule 60(b)(5). Valero Terrestrial Corp. v. Paige,
211 F.3d 112, 122 (4th Cir. 2000) (internal quotation marks omitted). “[I]n contrast to the
inquiry for vacatur . . . under Rule 60(b)(6), considerations of relative fault and public
interest are irrelevant to the inquiry for . . . vacatur of an injunction under Rule 60(b)(5) on
the grounds of a significant change in fact or law.” Id. (emphasis supplied).
Here, the district court justified its consideration of the public interest by citing two
Supreme Court cases. See Horne, 557 U.S. at 447; Rufo, 502 U.S. at 384. But both Horne
and Rufo are self styled “institutional reform” cases where the movant’s claimed basis for
19
relief was that continued enforcement would be detrimental to the public interest. 2 Horne,
557 U.S. at 447; Rufo 502 U.S. at 384. In essence, the language cited by the district court
does not authorize a broad judicial inquiry into the public interest, but instead maps a
possible avenue for relief available to the movant. See Horne, 447 U.S. at 447 (“[Rule
60(b)(5)] provides a means by which a party can ask a court to modify or vacate a judgment
or order if a significant change either in factual conditions or in the law renders continued
enforcement detrimental to the public interest.” (citation and internal quotation marks
omitted)); Rufo, 502 U.S. at 384 (“Modification of a [judgment] may be warranted when
changed factual conditions make compliance . . . substantially more onerous . . . . [or] when
a [judgment] proves to be unworkable because of unforeseen obstacles . . . or when
enforcement . . . would be detrimental to the public interest.” (emphasis supplied)).
At core, the operative question is whether “[t]he party seeking relief [met its] burden
of establishing that changed circumstances warrant relief.” Horne, 557 U.S. at 447. The
2
In Horne, the Superintendent of Public Instruction for the state of Arizona sought
Rule 60(b)(5) relief from a district court’s declaratory judgment order. 557 U.S. at 441–
42. The declaratory judgment order imposed a series of obligations on the state of Arizona
to comply with the Equal Education Opportunities Act. Id. The Superintendent’s Rule
60(b) motion alleged “sensitive federalism concerns” because the original order had “the
effect of dictating state or local budget priorities.” Id. at 448.
In Rufo, a county sheriff moved to modify a district court consent decree providing
for the construction of a new jail. 502 U.S. at 371–72. The Court acknowledged the
importance of the public interest in institutional reform litigation specifically because “such
[cases] reach beyond the parties involved directly in the suit and impact the public’s right
to the sound and efficient operation of its institutions.” Id. at 381 (internal quotation marks
omitted).
To be sure, the public interest is a vital concern in cases like Horne and Rufo where
public funds and federalism concerns are at play. But Horne and Rufo do not signify that
the public interest is vital in all cases.
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changed circumstance here is, of course, the fact that Welsh did not commit the crime with
which he was convicted. In turn, the Government has used this erroneous conviction to
justify his now seven year (and counting) span of detention in a federal correctional facility.
Surely, this is more than sufficient to satisfy Welsh’s burden of “establishing that changed
circumstances warrant relief.” Horne, 557 U.S. at 447.
III.
The district court characterized Welsh’s plea for relief from his lengthy, unjustified
detention as a “substantial personal interest in release from civil commitment.” J.A. 112.
This greatly understates the implications of Welsh’s continued commitment. In the United
States, we detain for criminal conduct, not mere propensity. See Powell v. Texas, 392 U.S.
514, 543 (1968) (Black, J., concurring) (“[P]unishment for a mere propensity . . . is a
situation universally sought to be avoided in our criminal law; [there is a] fundamental
requirement that some action be proved . . . .”). This principle is so deeply embedded in
our understanding of due process that it is indispensable in a free society. The Adam Walsh
Act walks a tightrope by detaining for propensity a narrow group of individuals: those in
legal custody of the Bureau of Prisons who are deemed “sexually dangerous.” 18 U.S.C.
§ 4248(a).
But detaining for propensity a citizen who never should have been in federal custody
in the first place 3 is not only inequitable, it is offensive to the most basic tenets of justice.
3
The majority asserts that “the government’s constitutional authority to civilly
commit [does not] depend solely on a criminal conviction.” Ante at 10. It bases this claim
on a never challenged provision permitting civil commitment of individuals “against whom
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Yet the district court failed to mention, address, or weigh the public’s interest in checking
the government’s power to detain citizens merely by virtue of their alleged propensities.
To ignore that interest is to ignore a vital cornerstone of a free society, in favor of
emphasizing a general public risk.
Accordingly, I respectfully dissent.
all criminal charges have been dismissed solely for reasons relating to the mental condition
of the person.” 18 U.S.C. § 4248(a). In light of Comstock, this position is on thin ice. See
Comstock, 560 U.S. at 149. For me, extending Comstock to permit the commitment of the
factually and legally innocent is a bridge too far.
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