remains there because the district court refused to lift its civil commitment judge this court can right that wrong under any of four theories the simplest is rule sixty five's reversed or vacated calls which provides relief where a judgment is based on a prior conviction or judgment that has since been vacated that's exactly what we have here we know that eighteen u s c forty two forty eight authorized the civil commitment only of those individuals who are in the legal custody of the bureau of prisons and as the district court acknowledged at one o six and one of seven of the joint appendix that authority quote existed soley because of the district of oregon's judgment of conviction mr welch we know then that the district court necessarily considered that judgment in that civil commitment decision well there are more parts to sixty b five then just reversed or vacated there are other bases for relief under sixty five that's correct your honor one can also seek relief if the judgment has been satisfied released or discharged would you relying on sixty five b and then if in don't you also isn't graham suggests that there is no equitable consideration under sixty five but even if there is a requirement that mr well show exceptional circumstances we believe the circumstances are exceptional here he has been in prison for more than seven years as a result of conduct that was not a crime it was a crime though at the time of the civil commitment that's not correct your honor because in nichols versus united states the supreme court told us what the statute sorta always meant and required under sixty five because that wires that the decision be based on a decision that has been reversed or vague and i thought you said that was the section to which you proceeding yes so the big picture had not happened at the time but that is not required for relief under sixty five the district court at the time of civil commitment did not need to have been dealing with a conviction that had already been bit those of the statute in this case forty two forty eight talks the talk in terms of custody not whether or not judgments  custody legal custody is custody pursue it if if we're dealing with only the subsection under which we're dealing with for mr welch it is only legal custody if he is they are subject to a valid conviction and we know because of but i understand from joshua that the question is whether in joshua the court was addressing whether joshua was in the legal custody of the few prisons or of someone else and in that case this court decided that he was in fact in the legal custody of it does though tell us that physical custody is not enough and that's why we have more than that here after the fact it turns out that the conviction was improper but the beer of prisons took control in custody of this individual pursu to what was then a valid judgment of a federal district court no your honor because of rivers versus roadway express the supreme court has explained that when it decides a statutory interpretation question which it did in nichols it is telling all courts what the statute had has always meant which means that at the time that mr wells pleaded guilty at the time he was convicted at the time he was certified at the time he was committed and today his conviction was always void so suppose we would have to then apply the criminal decision that his conviction wasn't valid in the first place retro actively in order to nullify the b o p s legal custody at the time right no your honor again i would direct this court's attention to rivers versus roadway express because it explains quite clearly that a statutory interpretation decision says what the statute always meant but i right and action has to be taken to impact the individual the district court had to consider whether to take the predicate action under sixty b clots and the question there was whether a professional operation could receive relief from a money judgment and that is the conviction or the judgment has not been vacated at the time of the initial determination that was sort of the point and then later the plaintiff was able to go back to the district court and seek rule sixty five really the issue though even for sixty four people this is seems to be whether here that is true here your honor actually well i'm sorry go ahead because that we know from the supreme court's decision and comstock as well as this court's decisions and joshua and savage that legal custody is at the very least a mandatory precondition for certification of forty  though the district court did not know it yet nobody knew it yet that's correct and he i'm having trouble i'm really having trouble sorting this because while your argument seems to be that the supreme court has no authority to decide it very often decides that its opinions are not retroactive they have no retroactive effect so it cannot be that the that the minute they decide that a law of the johnson line of cases for example is impermissibly va what context is that language that you just quoted us being used by the supreme court what was the issue that the supreme court was dealing with a civil rights statute and explaining that once it once it announces saying what the law is meant and if so what did that what did that mean and left i mean was that actually an issue in that case that there is some portion about the retroactive application of the statute yes it was and the court said that there is no what was the what was the issue and i'm just having trouble remembering th so sixty five has two clauses under which we've sought the reversed or vacated all right and then no longer no longer clause and under the five the court found no exceptional circumstances that's correct we believe that that increase not and that's exactly what i believe that this district court did in this case the question is not whether mr welsh was at the time or even is now sexually dangerous the question is whether his interest in release from civil commitment when he was never convicted in a valid way is out when he was never convicted of the so when there was no sooner it was the proper son the violation that's correct so his castle you're not you're not challenging the civil commitment determin are i'm sorry on its on its merits on its merits honor then it's you challenging the predicate on which it rested we are here today asking the court for relief from the determination this court is looking not at the question of a money judgment as it was in werner be carbon but in fact we're talking about liberty not money and to the extent there's a community or a public interest that should be considered i think the government of the district court are considering it too narrowly surely that public also has an interest in not committing and not convicting those who are actually innocent of the crimes which doesn't have a biblical interest in protecting no man from sexual predation indications of his incorrect ability or in the fact that he planned to continue those activities you are my light is on me and i'm sorry to have taken up if you could just answer that question and i mean you will have  determination because you're waiting factors you're weighing the interests of the detail even just the interests of the that's correct but we are not related getting the underlying civil commitment to render mr walsh's case he has had no hands on offenses for we don't know if he committed one and there's no allegations in the last eighteen years against all odds to grant you that but he hasn't been convicted basically in part of the time he was more or less country was you know part of the time he wasn't out of the country but that was a short time and there was no evidence presented that any hands on offenses occurred during that time either he also is sixty three years old and all the actuarial instruments suggest that after age sixty the risk of recidivism for sexual offenses goes down precipitously i would also note that to the extent the bureau of prisons has not recommended his release that is based on stable data because thank you very much i think you're going beyond thank you thank you mr lockri that judgment remained in place years after the forty two forty eight court civilly committed him as a sexually dangerous person based on him having gauged in multiple acts of sexual offense offending against children over a twenty year span this was a void judgment and as a result of the civil commitment just simply is not proper of what's the government's response to that was at the district court recognized today as the district court was confined in this case to determine whether to grant relief under sixty before sixty five sixty six under sixty four as judge duncan pointed out relief is not available where the district court had an arguable that at least an arguable basis for subject matter rivers the reverse case that it never was so if it never was and there was no prerequisite to his civil commitment now for seven years i'd like to go to rule sixty five how is in this person certainly certainly is based on a crime that is not a crime and off instead actually is not an office and how long can the government keep somebody in in custody civilly committed custody so the question is not much point goes back to the government's interest in seeing that justice is done in a case i don't understand how justice could be done in just holding on to  b five and b six is clearly abuse of discretion under before there's case law both ways one doing that it's reviewed for claire as well but what would it matter has is it in the record where mr wells just ever sought a hearing on release from from from a farewell one of the considerations the district court makes and it terminating at whether to grant relief under the five is whether significant change in fact will conditions or the law make continued enforcement of the civil commitment judgment detrimental to the public interest result of a serious mental illness his sexual behaviors and conduct has been poor since the civil commitment judgment he's engaged and appropriate sexual acts while in prison he's failed treatment and he's progressed poorly  if he were to be released would he still be under any supervision for any of his prior crimes and or on the sexual offense registry surely  ok because his criminal judgment was vacated therefore that supervisor allays which was for a life term incidentally that obviously goes away as well and that's the state parole violation when he fled to billy's from oregon that has been in a case on these facts well it depends on which prong of six to be we're looking at judged yes but in essence yes because and again it is important that we can what is what's the how does it depend which probably makes a difference because it's conviction was vacated every other in a even beyond supervision he i mean he would have to register is that we're actually looking at he's already received as a relief under the criminal judgment that that's done so that criminal relief but he's still based on his conduct during civil commitment the district court found that he would have serious difficulty refraining from sexually violent kind but child molestation based on record evidence that he frequently in gauged inappropriate sexual conduct during his civil commitment but a statement he made twenty fifteen that he was a satanist and would follow satanic commands to commit sexual crimes and a psychological report completed as a part of the treatment he received which concluded that he made virtually no advancement in his treatment that's correct  commitment order must as this court recognize mr wells does have the opportunity to seek relief in the future but the purpose of the adam walsh act congress purpose in acting the adam walsh act is to keep those in federal custody that the that the federal government as a custody and has a responsibility to ensure that their release would not impact in a dangerous way so sorry and to protect society from those accident ask you about the forty to forty eight section g which is the laurel in her brief sort of talked about very briefly and the government seemed to be concerned about whether or not she was making a claim under that's section for immediate release you don't read the provision as requiring the government to release an individual under the circumstances present here do you absolutely not we do we do not read it that way your honor we did we did make the argument here because it wasn't presented for the district court and she did make an argument for relief under there however if if it was made an argument we could tend that forty to forty eight g does not apply to more doesn't apply because we would contend forty two forty eight the language of that statute applies pre commitment if he's if he's determined to no longer be mentally ill pre commitment then that and the attorney general director of your prisons would release to the state the states on longer take and whether or not states and so this is a post commitments the phrase that mr that the all the court also says excuse me the lower court here required to avoid granting mr welsh relief was that there be an arguable basis for the court subject ma jurisdiction so at the time i love you back to before yes look i just want to briefly summarize that before at that time the district court had an article basis that's all that was required therefore mr welsh is claiming to be force precluded their grounds for relief so really work for kavanah going to be five if there's any relief available would be under b five to the exclusion of any i want to get back to judge stackers question and this sort of troubles me as well as you know this whole notion of holding somebody beyond the expiration of their criminal judgment just runs there's just inconsistent it seems with general notions of due process and general decency in our society and i recognize that the supreme court has spoken about the statute but given the unusual facts present in this case shouldn't it in a case of any question or doubt shouldn't that doubt in your to the in favor of the defendant in this case not in this case not not due to the nature of the purpose of the enactment of the statute your honor if you look at forty two forty eight it's sister statute fourteen four forty two forty six there are other civil detainees or prisoners who are detained without having been a conviction so the statute for divorce doesn't even require that a person be convicted in order to be determined sexily dangerous person and subsequently committed if we look at analogous situation this court the force circuit has determined where a person who is in prison escapes from that incarceration is escapes from the underlying sense for what's there imprisoned and then the underlying sentence is vacated or determined void that's not a defense to the person's escape here is the that's an analogous situation with mr welch he's attempting to ok then algy your honor is that just because he's in federal custody under a criminal judgment that it's lighter vacated should not allow him to avoid the application of other for what why do calls for out civil commitment laws and he said just go back to a similar gloss on that question it's very hard to me that i can see where you could look at the facts and say on this record it doesn't outweigh the public risk doesn't outweigh it i don't understand why it isn't a factor that the district court can at least take into consideration in weighing the equities doesn't which doesn't take water into consider the fact that the judgment of conviction was thank you saying that's just not relevant under in the procedural posture where we are well it's certainly the court recognized that it considered the underlying of judgment and in determining whether in the forty to forty eight case because without the underlying crime of judgment the four to forty eight case were never existed that's what brought him into federal custody begin with before your time expires what was forty two forty eight she says under the act congress requires the release of persons in federal custody who spectral charges had been dismissed for reasons not related to the mental condition of the person even if those persons were otherwise equity we would argue that we would argue that forty eight g applies only prior to the certification being filed because once that and it late and definitely prior to the court ordering him civilly committed under the statute because once the lawyer imposes  and again the default under forty to forty eight is to release people to the state if they were going to take a custody of the person for treatment purposes here that's what four to forty eight g was implemented to show mr lockridge suggested that mr welsh has vacated judgment has nothing at all to do with the civil commitment well can we start with what my recollection point and if it's if i mean correct tell me you are saying that he did not have any instances of sexual activity for the past eighteen years i believe hands on offenses you're on and on if it is what do we do with the finding that the district court relied on about frequent inappropriate sexual conduct during this committee my understanding your honor is that all of those were consensual and with other adults and while they were a violation of the bureau of prisons policies and regulations they were not what would ordinarily be considered a sexual offense or the psycho psychological room who suggested you have the sexual violence as we mentioned in our brief for more than a year mr welch has not participated in the c t p program at butner that has been on advice of counsel this court in an tone and footnote twelve recognized that while active litigation is pending participation t congress only has authority to legislate against it to legislate for civil commitment because of the custody status of the individuals reached by section forty two forty eight and this court reaffirmed in josh whether that custody must indeed be legal solicitor general at that time confirm to the supreme court that if the congress is looking at someone on the street they have no authority to legislate against that person the government's ideas about that person's sexual dangerousness or anything else related to civil commitment are completely irrelevant and at the time that mr walsh was civilly committed we now know from nichols that he was he should have been in the same position as that man on the street and the government's views of his purported sexual dangerousness simply are irrelevant to petition family seventy six that is true but again because he should have been similarly situated to someone on the street he should not bear the i understand i just wanted i just i wanted to make the point about the indefiniteness but i certainly take your point and i think that also goes to the government's interest in finale forty two forty eight civil commitment scheme necessarily presumes that these decisions will be up for review fairly frequently either on motion of the government o motion of the respondent and that i think undercuts the government's interest in the absolute finale of the civil commitment judgment and also as i mentioned before most sixty five cases are dealing with civil cases and money judgments here we have a liberty interest that's something this court to my knowledge has never considered either in the forty two forty eight context or in the forty to forty so i think it's very important to recognize that we are exceptional circumstances have been found in the context of cases involving only financial discretion i also wanted to mention briefly with respect to forty to forty eight g e this is a portion of the statute that to my knowledge has never been litigated and it was located after we filed our motion in the district court there is no mention in that statute that it applies only pre commitment and it appears from the text of the statute actually to apply after certification by its terms so we believe that it does apply but she didn't present that is a status was and that if all those charges had been had been dismissed prior to had been dismissed then that commitment could not so that's why we cited in our briefs and thank you i don't like to briefly return to your honor question about rivers v roadway express i apologize for not having the response handy during my initial remarks but the question was section one thousand eighty one and whether it covered discriminatory discriminatory  contract from a nation and the supreme court had later decided case called paterson that changed the way that statute had sleep been interpreted and the supreme court said that it was correct or that for courts to apply that authoritative interpretation of the phrase list your honor your honors because mr welsh has been in prison for more than seven years as a result of conduct that was not a crime we believe that under any standard under sixty four sixty five to clauses which we've raised and sixty six he is entitled to relief and this court should reverse the district court's judgment we don't believe remained as appropriate because the district court issued several alternative holdings and explained how it would  addressed the case had if this court disagreed with it and in certain respects so we believe that the appropriate opinion from this court would reverse the destruction thank you thank you very much we will drink co