and d which indicate that at eight am it was eight am that morning was his scheduled time for release we also know that november the twenty third the next day thanksgiving was initially has calculated last day in custody that was moved up under thirty six twenty four because of the federal holiday so all taken together that all supports the finding that he was released from his legal custody at the end of a sentence there's no finding that he was released from legal  florida well i don't need a summary judgment standard all these facts have to be taken in the light most favorable to mr mattingly so it's our it's our position that at that time he had finished serving his sentence it's not clear from the record that there would be any other reason for him to be held beyond that time backs we have to take in the light most favorable to him but whether or not there was a released legal custody would seem to be more a conclusion of law yes well from if yet since it's the end of his sentence at on november the twenty second it's not there's no evidence in the record that there was another reason to continue holding him beyond his civil commitment under the adam walsh act well that would be true for that day but we don't know at least i can't tell from looking at what record there is exactly what happened nine twenty am whether that was indeed intended in the nomenclature of the prison system to be a release from legal custody and he was just hanging out a lobby wait for his right after that or whether that was simply the start of him put into the process attachments b and d both indicate that at eight am he was going to be released to his mother his attachments also indicate that he was traveling back to virginia and different state that he was going to be leaving at that time and furthermore the statute lays out the way in which the civil commitment processes to be initiated which is that the certificate is filed and then that stays the release of the individual custody while the hearing is why the hearing occurs and the issue is sorted out but in this case we have from the district court that he was released at nine twenty and that certificate wasn't filed until kind of wait wells actually he was released a whole year's look at the term released he was released a whole bunch of the district court could know what each one of these again i think the common and there were no hearing was are correct there is no hearing he made his decision on the papers just like we correct so how can you deal with these things m to we believe that the combination of being a good time released listed at nine twenty along with the other attachments that indicate that this was the end of his sentence we know that november twenty second was the day he was to be released and that he was being released to  the custody of his mother he was going to supervised in the eastern district of virginia that it appears that it was every intention that he was leaving the bureau of prisons and going to another location at that time but that he was held over for whatever reason for those forty eight minutes before the civil commitment papers were filed and then at that that which should have happened prior to nine twenty eight if his stay was to really be if his release was to be stayed the government that further makes the point that his physical his custody should have or could have extended until eleven fifty nine that night or suggested it could have extended until eleven fifty nine the next day of thanksgiving but as has previously ruled in joshua legal custody is the only test for custody under the adam walsh act so the combination of his continued physical custody under whatever basis plus they theoretical ability to hold him until eleven fifty nine that night those can't be combined together because the physical custody can't count furthermore allowing a test under which the individual could be held until eleven fifty nine the last day of their sentence creates a series of absurd outcomes one of which is potentially in this case of mr maddow where for whatever reason he was held over after the point of his legal release until the papers were filed could he be pulled over when he's in the car with his mother in the parking lot or are taken from his home on thanksgiving the next day if there was a reason that he could theoretically have been held until that point at the fact of the matter remains that as a district court found he was released at nine where there are no disputed material facts but it's sort of looks like there's a fairly significant material facts that we just don't know what they are but we we think there's at least certainly enough of a dispute that summary judgment should not have been awarded t government but when it comes to physical custody whether or not he was still in physical custody as this court found in joshua it is irrelevant to the determination of whether or not he was in custody for the purposes of the adam walsh act and is when we look at a case like this what you asked us to do is define as a matter of law that he must have been released at this particular time and twenty to thirty seem to go where he's done with this and that is that why should we make that legal determination when this record is really not developed to the point of giving us information sufficient to say these  indefinite period of time the government must be sure to comply with all safeguards these include not only those safeguards built into the statute such as the custody requirement discussed by mr robbins but also time honored principles of statutory interpretation among these is the presumption against retroactivity this can instructs courts that a statute should not apply retroactively absent a clear indication from congress that it should do so in applying this can this court asks two questions first whether congress has clearly defined the reach of the statute and second whether the statute as applied to mr madly in this case has a retroactive effect first congress has not clearly defined the or discussed retroactivity in any way the lack of a clear statement here is highlighted by a comparison to another statute governing sex offenders in forty two u s c section sixty nine thirteen congress explicitly granted the attorney general the story to determine whether or not the registration requirements within that act would apply to preemptive fenner's this shows us that congress when it seeks to do so knows how to make the law retroactive it did not do so here and the language is whether the law attaches new legal consequences to events completed prior to its nachman a helpful case here is the united states supreme court's decision in st cyr they are the court addressed whether new amendments to the immigration law that made individuals who had committed certain felonies listed on the statute ineligible for discretionary discretionary relief from deportation would apply to mr st cyr who had pled guilty to one of the listed offenses prior to the the law there the government argued that the statute did not have a retroactive effect as applied to mr st cyr because deportation is inherently prospective that is that it looks to the aliens rights remain in the country in the future criminal barrier but here it's different you may have a preexisting conviction that fits with the steps story skiing for civil commitment but there still have to be other findings of contemporary things on g however the fact remains that in order to be subjected to the adam walsh act an individual must be within the custody of the bureau of prisons this is important because the act does not reach any sexually dangerous individual on the streets when mr madoff he pled guilty and subjected himself to the adam walsh act the consequence of his action was to serve out a sentence handed down by the district judge notably the legal consequences of this action did not include potential confinement under the adam one of the requirements is that the individual have a prior bad act and that is the act that placed him in prison so that's part of and of itself but it does not enough itself because the individual so as to be deemed sexually dangerous it going forward but that doesn't change the fact that the analysis here is whether the act attaches new legal consequences to preen ackman events and that the conclusion there has to be yes because it both attaches legal consequences to the guilty that led him to be subjected to the act and to the commission of the prior bad acts that subjected him to the act as well so whether or not congress focused on future dangerousness the fact remains that the act applies new consequences to preen eichman events and that is the question and that really is an issue in the retroactivity analysis but at least what i'm trying to get at is this really his mental condition  retroactive at all just to be able to write in addition we still believe that whether or not congress was focusing on the future dangerousness the fact remains that it does the immigration concerns were concerns going forward and that's what the congress was focusing but that didn't stop the court in that case from holding that the law still had a retroactive effect as applied to the individual in that case consideration of his pre an act of conduct or under the statute retroactive as applied to him are perfectly summarized the facts that are important in this case is your position that this action  girl prison legal authority derives from the criminal sentence that was imposed against miles away and that as computed by the bureau of prisons that sentence did not end until the last day that send was november twenty second two thousand and six therefore the b o p maintained legal authority that entire day by operation of the sentence imposed by the sending court so what if in fact the president say they have executed at least so  factual scenario it's not present here and i don't think that the cut would fit neatly within what you just said that it didn't matter because you haven't all day long until eleven if not well the man if they actually let it go they still have legal custody relevant here your honor because and the other cases such as joshua where they where they court said that the legal custody was a determining factor the inmate in that case was actually never end the b o p s legal custody they were you released you didn't put them on and it mission type hole or whatever no no your honor that is not ordinarily if they don't have a detainer then the bureau of prisons are going to release them but importantly here your honor it was no of eight o'clock in the morning and then this other designation of age forty four we don't know what that stuff is that's correct this court does not know what that means because it wasn't how can we conduct appellate review this decision if we don't know what these missing material facts are well as mr mather only requested in his reply brief to this court for this court to take judicial notice of the opi policy of the steps for bill p policy that that requires certain paperwork and documents and steps to be completed for an inmate to be finally released from his prison term joint appendix fifty nine contains a joint appendix page fifty nine contains an x   contrary finding in fact and so the district courts statement that the b o p released madly from custody at nine twenty is not material to its ultimate finding and its legal determination that the government had authority to file the certificate and the reason for that is because as mentioned the required release paperwork was not completed as a joint appendix fifty shows he remained in physical custody and although the bureau of prisons had started the release process and never complained it this well the district court made its finding with respect to release from custody limited extent it is addressed that citing what for the first circuit case which is the one where there was a legal custody to eleven fifty last day of incarceration and clearly that did not physically occur in this case so if indeed there was a release by the bureau of prisons it twenty from legal custody something we don't know based on this record then it would not appear that wetmore would have any application more your honor if i think we can infer from the from the legal conclusion that the district court made that its statement that the b o p release modeling from custody was not illegal released from custody otherwise it would it would we can infer that it wouldn't made the has the authority to up to two to affirm the district's court's holding on that issue because based on the holding in the first circuits holding if this court finds that the bureau prison had legal custody the entire day notwithstanding the record at the district court then i think the district this court could affirm the district court's holding on that issue moving on to the second issue of retroactivity the district court's conclusion that mightily was properly subject to commitment under forty two forty eight is consistent with the supreme court's jurisdictional retroactivity jurist prudence excuse me supreme court has held that a statute operation can draw upon antecedent facts without implicating retroactivity concerns if the statute authorize the sanctions to address post an act meant dangers the supreme court in kansas versus hendricks has is very well as addressed a very similar state statute the kansas statute that which provided clear for civil commitment of persons based on a mental illness and and a finding that they had a a risk of future danger to the public the supreme court that case held that civil commitment clearly was not retroactive that statute clearly was not retroactive more recently and tell us v holder the supreme court that's a two thousand and twelve decision the supreme court held that statutes that prohibit convicted sex offenders from working with children and statutes that prohibit persons who have been committed to a mental health facility from purchasing guns do not operate retroactively because they as well address dangers that arise post in ackman under forty two forty eight forty two forty eight does just exactly that in order for a person to be civil committed the government must prove that he's engaged in or attempted to engage in sexually violent conduct or child molestation but also that he currently suffers from a mental illness and would pose a danger if release like the non retroactive civil commitment statute issuing hand ricks and the statutes mentioned involved tell us forty two forty eight for the same reasons as non or is not retroactive and is this court held in united states versus comstock forty two forty eight allows the use  act evidence for legitimate evidence your purpose as i believe the judge when mentioned earlier to support a finding of the mental illness and based on the future dangerousness not based on any prior past conduct that person may have ga thank you judge just a few points first of all of if the court does still have such open questions about these documents summary judgment was at least inappropriate for the government furthermore when it comes to whether or not mr mattingly could have been held that entire day the government's just distinguishing between more and more absurd hypotheticals of him having been released with the one we have here because he was still in physical custody but as we know from the united states we joshua the physical custody camp matter because it makes the statute both over and under inclusive for the more section thirty six twenty four eighteen u s c thirty six twenty four is the release statute it says that the prisoner shall be released on the last day of confinement but it doesn't specify a time and in this case that receiving a discharge manual indicates that the prisoner supposed to be released at the time that's scheduled which in this case was eight am and the district court found to be nine twenty and finally had the government data indicate that there was no legal basis there is no detain or to further hold mr mattingly after the point at which has his sentence expired and he would have been released we were released much less logically procedures physical release from the actual building i've got a question i want to ask about retroactivity you want to take that do you want your probably become a mystery i'm just curious if if should you know should shell be sent to a treatment facility and not released to the general public would your argument be the same retroactivity yes your honor because it would still attach a new legal consequence this i'm not sure that they can judge when that is a great distinction and the court is certainly willing to use that there's also potentially another distinction in the court in st cyr and later in bartulis and place emphasis on the fact that miss the individuals in those cases pled guilty so perhaps your hypothetical would depend on whether or not the individual had pled guilty to the offense because  while the ninth the ninth circuit case that this government has filed in supplement to its brief addressed a separate provision of the animal shacked not the provision that has been applied to mr madly in this case thank you