the court the district court erred in denying mr sears whose motion to dismiss based on the section fifteen sixteen fifty eight a statute of limitations i think there are three legal issues this court need to address in order to reach that conclusion first the sex in section sixteen fifty eight a apply against the united states at all second does sixteen fifty a day apply to section forty two forty eight proceedings in particular in third when did the claim accrue against mr serious and i think the first two questions are answered by the plain language of the statute and the third question is answered by the web well settled a cruel rule that missy so sixteen fifty eight states except as otherwise provided by law civil action arising under an act of congress enacted after the date of the unicorn of the may not be commenced later than four years after the cause of action of rooms so in the plain text of the statute those first words except as otherwise provided by law so there was this court's well aware from the briefing a common law judicially created that you would adopt statutes of limitations from the states federal causes of action why isn't this in your focus on that particular portion of that you why isn't the custody requirement of section forty two forty eight  applied to this as otherwise provided by law as the what congress had in mind perspective this fifty or so your honor in so in order for the cause of action to accrue one of the things that needs to happen is the individual needs to be in the custody of the bureau of prisons and if the individual is not in the legal custody of the bureau of prisons that would be a reason to dismiss the claim that doesn't make section forty to forty eight different from any other civil action that might have some sort of condition precedent you might have for instance a certain plan needs to be qualified as in a risk of plan for you to bring this to sue under a statute if it's a certain things need to be met so the statute of course has requirements person needs to be in the custody of the bureau of prisons but that says nothing about when the claim of cruise for purposes of the statute of limitations w it accrues when the party in this case united states has information sufficient to put it on notice in mr circe's case so right when they enter custody well you know each case your honor is going to be fac specific and that's not strange the statute of limitations claim is always going to be you know fact specific in terms of a cruel and in terms of on the facts when somebody when you think it a mr surtees facts this claim accrued july twenty seventh two thousand and six when the statute came into existence and the government at that point can look at mr vs our had enough facts to put it on notice that mr sears he was someone that needed to invest but can i ask i don't know i just don't understand how that works in two thousand and six what they needed to do was investigate whether he would be a danger in two thousand and sixteen when he would otherwise be released so how are they supposed to know in two thousand and six anything they do in two thousand and six is going to be by the time two thousand and sixteen rolls around don't they have to take account of what happens in prison is he getting treatment i just don't see how this works practically speaking what is a practical matter your honor what what happens practically is everyone who static his personal situation and condition the subject to change in your honor in forty two forty eight i think the court can agree in your right mind has he lived through it it would change that he could be rehabilitated i mean i'm cured or art of that goal  your goal would be that these offenders and be we have military did so that they can be released from custody and it feels like your argument might do a detriment to some of anders too if it would judge and then within those first four years they had any work at rehabilitation that they do after that their own and they won't be released even if they've been gotten better and if i may answer your question your honor then your question jets d is first section forty two forty eight provides a mechanism where every six months after an individual's been committed or when the person holding them in custody finds that they have been cured they can petition the court for release so there is a mechanism if someone of mr searcy had been committed in two thousand and eight he would have had multiple opportunities to try and improve himself  what happens there so the court would make findings it would find the government did not meet its burden and some of those findings would be subject to basically collateral stoppel restated but if there is a fundamental change in an individual the government can take that new information and go back and attempt to recertify it and if there is a fundamental change in fact that it wouldn't be struck me as that the most efficient way to handle this meanwhile with the government have to  your theory i guess might have to undergo a series of hearings in order to ultimately resolve the question of whether or not this individual should be released right before or should be released right before the end of his custody no your honor because i think there's still there's first more efficiency in having these claims resolved as soon as possible then doing as the government's been doing and waiting until the last minute and creating detention beyond that which may have been contemplated by the statute beyond that which is necessary if a person can be committed enter treatment early be in treatment and possibly finish treatment by the time their sentence would otherwise expire i think that's the most efficient situation i also think your honor it would not be a situation where the government say had a commitment hearing and again look at mr case almost all of this was looking at the past to determine whether he committed sexual mismatch in the past and his pres i don't understand it's not a fact your honor it is a present diagnosis but if you look at his case the criteria that the experts used to diagnose him was based almost entirely on his actions in the so he suffers from pedophilia and in making that determination they relied on the conviction in florida they relied on the federal conviction they relied on this in my reading of the diagnosis was that it was a little more complicated than just there are some  question before about you know the future looking you know again in civil cases there's often times some speculative future looking component you know say someone i have a business someone reaches a contract with me because of that breach of contract you know my business fails i'm not able to make some things in terms of speculating in terms of damages make a speculative future assessment of what will these damages can i stop you there because this i am the whole conversation we're having today does make me wonder whether it makes any sense to think about a civil commitment proceeding like this in terms of a statute of limitations because in your hypothetical at least there is this past the breach that kind of anchors the statute of limitations when something is entirely forward looking there is no past act why would it just it i'm having a very fundamental disconnect between a statute like this which is designed to protect the community from a future danger and a case like your breach of contract hypothetical where there is a that you can have a statute of limitations to it just seems like a mismatch right and i think thanks for bringing up that question i would say look first your honor you know the language of the statute well but this is actually i mean you started talking about the legislative history in the background and jones does instruct us to pay attention to rational intent it seems like the statute is designed to come into play when federal courts would otherwise have to borrow a state statute of limitations but if there's no statute of limitations at all it's not obvious to me that that's that that  e sixteen fifty eight was designed to establish a statute of limitations that didn't already exist and require borrowing and in your honor i would say the statute says except as otherwise provided by law so there may have been and the certainly was a motivation for creating sixteen fifty eight a but the plain language of sixteen fifty eight does not say for instance when a court would otherwise by reason need statute of limitation t says except as otherwise provided by law and to you know get to your honor's point about there being you know it is civil commitment and that sort of my second question just different in kind and you know i think the government ny probably each spent a lot of time trying to find cases to analogize and there really is no exception that i could find and i don't think the government could saying that civil commitment actions are different  he says where people bring statute of limitations challenges to civil commitments well i think your honor not that i could find one way or the other and i think that in the absence isn't that sort of a pregnant absence that nobody ever thought there was a statute of limitations in a civil commitment  respectfully no your honor and as much as i think a lot of states that have statute that have civil commitment proceedings they run them much more like the government here runs forty to forty six that there's an actual expectation and sometimes codified in the statute that this is going to be applied for someone who is about to be released as a matter of law so the statute of limitations defense wouldn't be raised because they are the claim wouldn't accrue until the person w in that way forty two forty eight is different it's different in kind because it does not have any sort of statutory trigger any sort of expectation that the person would be nearing release instead and as this court has clarified forty two forty eight you know the government can bring a suit is soon as you're in the legal custody of the bureau of prisons and that's it and then the next question becomes when is the government on notice that it needs to conduct some sort of inquiry and i know there's a sense i'm getting it from the panel and i certainly when i started this case had it myself that but aren't civil commitments just somehow different and i cannot find a trigger in the law to say you  know hendricks was the case that talked about you know the challenge there was is this criminal or is this civil and at no point did the supreme court speculate that there may be some third category in the law that these are sort of criminally of the relevant evidence and in particular i guess you were referring to the underlying acts were the basis for the diagnoses or are oftentimes the basis for the diagnoses and in these cases but are you suggesting that your client or anyone else in this situation would be able to collaterally attack these underlying convictions in these proceedings because i don't think that's correct no your honor they could not collaterally attack because then why is there a still miss problem i mean the convictions are what they are there are factors no disputing that the only seems the only thing that isn't dispute is what is the medical or psychological psychiatric significance of those convictions and there's nothing stale about that you have the opportunity your client does to cross examine the experts and bring in your own experts so what is the concern here the concern your honor is that say unlike to take an example the arm career criminal act which doesn't actually ask whether you committed this past it triggers it based on a conviction if you have a conviction very violent felony unless you can collaterally attack in a way that's an ak a predicate forty two forty eight doesn't do that your honor it says whether you've committed of sexual violence in the past now certainly a conviction for that would be incredibly strong almost always an rebuttable evidence of having committed the act but they did the legal existence of the conviction itself actually doesn't matter under the statute the facts of the conviction i think mr sears he's case again provides a good example you know when you it on are brought up you can cross examine and the like but you know in the florida conviction the first flo conviction you know we had evidence showing mr sears he brought up evidence showing that all of the records of the conviction had been destroyed and at least one person's recollection one person's note about the age of the victim differed from is a bad one forty eight happened during that prior conviction is relevant to mr c's medical diagnosis psychological diagnosis so for instance whether his victim was eight years old or fifteen years old that the district judge in the forty to forty eight proceeding can certainly hear evidence about like again in this case there was a dispute over the age of the victim that's just one factor and i would say certainly that the district judge would hear that in the different experts could opine about whether that act would make a difference or not a lot of these convictions your honor are older and there are destroyed records and there actually is somewhat of a dispute maybe not at the very core of what happened but about the kind of details that actually matter when you're trying to decide whether an individual is mentally ill or not suffers from something like that ophelia and you know and even leaving all that aside you know the plain language of the statute sixteen fifty eight it says except otherwise provided by law there's nothing in forty that except this and a civil action arising under an act of congress which forty two forty eight is so policy aside i still think the plain language of the statu compels the result here or thank you forty two forty eight and that sixteen fifty eight did not apply before i go into my my read my reasoning i want to suggest a couple of things that counsel stated a few moments ago that it is nearer to the time of the person's lease that the the process should begin and i believe judge backor you you mentioned how this this would not at the point in time which the hearing is held if it doesn't meet its burden right well that would pose other problems that this court pointed out in spring or the constant recertification of an individual and here's one of the practical mr britton access and response that that's a period of time where he can be created where he can be rehabilitated and allows a look at more time for him to be able to overcome that finding immediately prior to his release well that all the other is very convincing evidence and the burden is on the government to demonstrate each of each prog of the adam walsh act by that standard and a review hearing the burden of proof is is adopted a person enters the bureau of prison freshly sentence and the government now has to initiate the civil commitment sealing within forty eight months just for the court to understand when the b that civil commitment proceeding in that short period of time now the odds are this person is going to be found sexually day and now the respond that who has been found such a dangerous now that responded now has the burden to show that after their long term that they are no longer sexually day that doesn't make a lot of sense in the case of respondents who have sensors like mr sears the hundred  eighty months but those who have senses two hundred forty months i can represent to the court that i reviewed a number of past and current certifications and we have about seventy one with all names and i appreciate there is no express that are limitations there's a default or your statute wasn't at the end of the story well is in the story for a number of reasons one court pointed out the other wise provided by law second it what does that mean to you a party believes they have been is to get a claim of relief or a wrong that you know that's a very expensive interpretation of that language but except as otherwise provided by last used me to be heard direct and clear so what is it elsewhere in some other statutory regime that accepts this proceeding from the four year statute of limitations well you're on to i am i but by the very nature of it and to avoid in reading the pla you look at the plain language of the of the statute to avoid an absurd result it would leave this interpretation offered by the responder in this case by seriously it would lead to the absurd result however surely did not in sex offender who has let's say a fifty more of term of imprisonment who could be certified within the first forty eight that that person would be certified and you could the court to support that then determine with a person is is a certification review hearing within the first forty eight months of that two hundred and forty months sense that would lead to an absurd result that that is not truly what congress intended with civil commitment s out that these are probably not the correct forms for a respondent to attack collaterally attack a prior conviction which is what one of the arguments was about well the these areas need to be done within the first forty eight yet to be certified within forty eight months and the hearing take place because evidence may be may be lost or still well by the time the person has entered the accrue at the time of the certification nearer to accomplish the goal of the district court to examine whether a person is presently sexually dangerous ok so what if the government has information longer for the date of th certification and there's evidence to that fact that that seems like that would allow for a little bit of sandbag on the part of the government well why isn't it when the government either knows or reasonably should know that a certification is an awar view branch was determining whether or not to start a fire that occurred but isn't the question when you need when the government needs to start doing the interview and everything i mean or stand that you could you can't make the certification of for allow the government to it would be odd to put to make the trigger for the accrual of a cause of action but that in the hands of one of the parties entirely but why isn't it when the government sort of reasonably should be expected to make to be able to make a determination that on the date of release this person will be a danger to the community which can't be twenty years in advance because things change but the statute seems to contemplate that these reports are good for either six months or a year so somewhere in that time see what i'm saying is the statute has you have to resort to you have to do that periodic but that's true that every hour every year every six months and that seems to indicate that this kind of a determination is good for six months or a year so why shouldn't the new law is and maybe a year before the release date a reasonable time to say look at affluent the government can predict the kind of future risk that would be entailed if this person is released in the judge d i'm not suggesting we a that we use the review process as an alternative for making a certification and then have to keep remaking i'm saying that we need to i sort of like we need if we're going to say the statute of limitations applies that i'm just assuming that for the moment there is this question of when the cause of action accrues and to my mind what we need is some sense of how far in advance it would be reasonable for the government to make a judgment about what the state of affairs will be on some future release date and i don't know what that number is i'm looking at the statute and the statute seems to indicate that these determinations need to be we visited every six months different sections as every year much or which one were under upcoming their release is upcoming the bureau of prisons looks at that between eighteen and twenty four months prior to the person's release that is when their prisons begins the process to determine whether someone who is released will be is occurring it does occur with between eighteen and twenty four months so that would it sounds to me like this wouldn't be much of a problem if we said the cause of action accrues at the time when you guys kind of traditionally start your investigation that's  what would you say about a few points your honor first the question of who has the burden of proof in these challenge that is sort of actively being litigated it's not really before this panel but i do want to make the panel aware that the statute is silent as to who has the burden of proof and the district courts have been applying it against us but that that's actually bubbling up so i would just ask the panel maybe either not to reach that or to at least have supplemental briefing or something on that point if it becomes essential to th panel's decision mr antonie who we referenced one of the most remarkable men i know and i think he's correct mr antonio had had his certificate filed against him for years within four years of him getting into the bureau of prisons he may have lost its case and you know when a lawsuit is filed can affect the outcome of that lawsuit that's why people spend a lot of time and energy deciding when to file a lawsuit arguing about statutes of limitation and you know that an outcome may have been adverse to one of my clients doesn't mean i'm going to ask this court not to apply the law as written judge harris you obviously have very good questions about when this could accrue i think i wanted to respond by saying first you know forty two forty eight again there's a very pregnant absence and forty two forty eight compared to forty two forty six forty two forty six your honor i think does contemplate if you are thinking in terms of closer to the release date it says expressly you know individual who sentence is about to expire forty two forty eight which was written i think that demonstrates you know with forty two forty six open right next to it left that language out think there is an expectation on congress's part that these actions can accrue when the person is in the legal custody of the bureau of prisons and there isn't enough information known to put the government on notice it has to investigate at which point it then has four years to investigate it then files a certificate there discovery on both sides it takes about another year from that point to actually have the hearing and i don't think that saying that this saying that this basically a cruise when the bureau of prisons sort of initiate that process within two limitations work the cruel is a legal term and it means when a party has enough information which would have been at the time sentencing in mr cases i would say if the government has  that that it must accrue at that time they had enough information that government is likely going to feel that they have enough information on conviction  when properly and you know i don't think it's too much of a burden on the government we know this because the government's done it and if i may may i just one bookkeeping point your honor thank you mr james mentioned seventy one individuals i just want to say i think that number is you know the individuals who've sort of gone through the process our review my personal view is i think there may be eighteen individuals who are currently committed who possibly could have raised this defense and did not i just i didn't want the