United States v. William Welsh

                                      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).


                                              11
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




                                            14
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.

                                              20
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

                                               21
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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