UNITED STATES of America, Petitioner-Appellee, v. Donald MACLAREN, Respondent-Appellant.
No. 16-6291
United States Court of Appeals, Fourth Circuit.
August 2, 2017
212
Argued: May 11, 2017
I agree with the majority opinion‘s conclusion that the dismissal of all earlier-filed, related actions does not, by operation of law; lift the first-to-file bar on a later-filed action. The majority opinion further concludes that the district court did not abuse its discretion in denying Relator leave to amend. I write separately to emphasize the narrow sсope of that conclusion. In particular, the majority opinion finds that the district court did not reversibly err in denying Relator leave to amend solely on grounds that his proposed amendment did not “address any matters potentially relevant to the first-to-file rule, such as the dismissals of the [earlier-filed, related actions].” Ante at 210. To that end, the majority opinion does not address, much less adopt, the district court‘s reаsoning that an amendment or supplement to a complaint cannot, as a matter of law, cure a first-to-file defect, id. at 211 n.8-a question that has divided district courts in this circuit and around the country, see United States ex rel. Wood v. Allergan, Inc., No. 10-CV-5645, 246 F.Supp.3d 772, 792, 2017 WL 1233991, at *10 (S.D.N.Y. Mar. 31, 2017) (collecting cases). Likewise, the majority opinion does not address whether the district court‘s rule categorically barring a relator from supplementing a complaint to cure a first-to-file defect is consistent with this Court‘s decision in Feldman v. Law Enforcement Associates Corp., 752 F.3d 339, 347 (4th Cir. 2014), which held that “even when [a] District Court lacks jurisdiction over a claim at the time of its original filing, a supplemental complaint may cure the defect by alleging the subsequent fact which eliminates the jurisdictional bar.” Rather than resolving those questions, the majority opinion simply holds that a prоposed amendment or supplement to a complaint cannot cure a first-to-file defect when the amendment or supplement does not reference the dismissal of publicly disclosed, earlier-filed related actions.
Before GREGORY, Chief Judge, and DUNCAN and DIAZ, Circuit Judges.
DIAZ, Circuit Judge:
Donald Maclaren, who is civilly committed pursuant to the Adam Walsh Child Protection and Safety Act of 2006,
I.
A.
In December 2009, the government certified Maclaren as a sexually dangerous person pursuant to the Adam Walsh Act. In February 2013, a court in the Eastern District of North Carolina held that the government hаd met its burden of proving by clear and convincing evidence that Maclaren was subject to civil commitment pursuant to the Act and committed him to the custody and care of the Attorney General.
In its order, the district court recounted Maclaren‘s personal history and alleged sexual offense history1 before turning to the three elements that the government must establish before obtaining a commitment order. Thosе elements are “that the person (1) has engaged or attempted to engage in sexually violent conduct or child molestation, (2) suffers from a serious mental illness, abnormality, or disorder, and (3) as a result, would have serious difficulty refraining from sexually violent conduct or child molestation if released.” United States v. Comstock, 627 F.3d 513, 515-16 (4th Cir. 2010).
With respect to the first element, the district court found that there was “no dispute in this case that Maclaren has previously engaged in or attempted to engage in acts of child molestation or sexually violent conduct.” J.A. 42. As for the second element, the court said that “the government‘s evidence is of such a weight that it produces a firm belief or conviction that Maclaren suffers from pedophilia.” J.A. 44 (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. tеxt rev. 2000) (hereinafter DSM-IV-TR)).
Turning to the third element, the court began by recounting factors that could aggravate Maclaren‘s risk of re-offense. Among other things, Maclaren had a “prolific pattern of highly deviant sexual behavior” commencing “[f]rom the time he was a young child until he was incarcerated at the age of fifty-four,” J.A. 46, he “refuse[d] to accept full responsibility for his actions,” J.A. 48, and his “cognitive distortions regarding his behаvior” led him to think of “himself as a protector of children and a caring parental figure,” J.A. 49.
But there were also factors that could mitigate his risk of re-offense “his advancing age and physical limitations.” J.A. 50. The court questioned the usefulness of
Ultimately, the district court held that the government had established the third element. Maclaren‘s inabilities to “appreciate the breadth and severity of his pedophilia,” develop a “meaningful relapse prevention plan,” and acquire “the skills necessary to overcome his sexually deviant urges” were dispositive. J.A. 52. The court acknowledged thе government‘s representation that “if Maclaren is committed as a sexually dangerous person, the government anticipates filing a request for his conditional release.” J.A. 53-54. The court, however, “offer[ed] no opinion as to the viability of the government‘s proposed regimen or the likelihood of success of any conditional release motion.” J.A. 54.
B.
Maclaren has been confined at the Federal Correctional Institution at Butner, North Carolina (“FCI Butner“) since his commitment. In October 2015, pursuant to
Maclaren also submitted an expert report by Dr. Luis Rosell, a licensed psychologist. Dr. Rosell evaluated Maclaren in June 2015 and concluded that Maclaren qualified for discharge because, though he suffered from pedophilic disorder, he would not have “serious difficulty refraining from sexually violent conduct or child molestation.” J.A. 66. Dr. Rosell based that conclusion upon, among other things: (1) the American Psychiatric Association‘s release of the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (the DSM-V), which, unlike the DSM-IV-TR, does not characterize pedophilia as a lifelong condition; (2) a variety of actuarial models; and (3) Maclaren‘s age and poor health.
The government opposed the motion. It argued that Maclaren hadn‘t responded to information requests for the purpose of conditional release planning and that he had “continually elected not to participate in treatment.” J.A. 74. The government took issue with Dr. Rosell‘s report, contending that it “points to no improvement in [Maclaren‘s] mental condition since his commitment or in his ability to refrain from sexually reoffending if released.” J.A. 77. The government also directed the district court to the 2015 report by its forensic evaluator which showed that Maclaren “has not made any progress in addressing his dynamic risk factors, given that he has refused sex offender treatment since his commitment.” J.A. 78. Two days before the district court ruled on the motion, the government separately filed the 2016 report
The district court denied Maclaren‘s motion for a hearing. After surveying orders issued by other judges in the Eastern District of North Carolina, the district court set the bar for obtaining a hearing as follows: “a request for a hearing pursuant to § 4247(h) must, intеr alia, state with particularity ‘the extent to which ... Respondent‘s psychological/psychiatric condition has improved since he was committed’ and ‘what, if anything, Respondent has done to meet the conditions of release specified in § 4248(d)(2).‘” J.A. 83 (quoting United States v. Barrett, No. 5:07-HC-2097, ECF 132, at 6 (E.D.N.C. Oct. 30, 2012)).
The district court acknowledged but gave little weight to Dr. Rosell‘s report because it did not discern any “specific changes identifiеd which might mitigate [Maclaren‘s] risk for re-offending” other than his “increasing age due to the passage of time.” J.A. 84. Conversely, it noted that the government‘s forensic evaluator continued to characterize Maclaren as sexually dangerous. Finally, the court invoked Maclaren‘s failures to provide information regarding a release plan and to participate in a treatment program as reasons for denying a hearing.
This appeal followed.
II.
What an Adam Walsh Act detainee must do to secure a discharge hearing under
A.
As always, we begin with the text. While
counsel for [an Adam Walsh Act detainee] or his legal guardian may, at any time during such person‘s commitment, file with the court that ordered the commitment a motion for a hearing to determine whether the person should be discharged from such facility, but no such motion may be filed within one hundred and eighty days of a court dеtermination that the person should continue to be committed.
At the hearing contemplated in
After the Director so notifies the court, the court “shаll order the discharge of the person or, on motion of the attorney for the government or on its own motion, shall hold a hearing.”
While
The lesson from the text is that the discharge hearing, rather than the motion requesting one, is the place to meet strict evidentiary burdens. It would be redundant to require Maclaren to make the same evidentiary showing in the motion requesting a hearing and at the hearing, and illogical to think that Congress so intended given that it defined the hearing‘s evidentiary framework but said nothing about the motion‘s requirements. Cf. Va. Uranium, Inc. v. Warren, 848 F.3d 590, 596 (4th Cir. 2017) (noting that “the canon of expressio unius est exclusio alterius may apply where ‘it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it‘” (quoting Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003))). Similarly, it‘s at the discharge hearing rather than in its review of a
In our view, Maclarеn‘s procedural posture is most analogous to that of a civil plaintiff who files a complaint. Maclaren effectively seeks to bring a claim for discharge. A
As such, we hold that the plausibility-pleading framework for resolving Rule 12(b)(6) challenges to a complaint is equally appropriate for assessing an Adam Walsh Act detainee‘s
In making that determinаtion a district court should, among other things, accept as true all well pleaded facts in the motion and construe them in the light most favorable to the detainee. See SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015) (describing the pleading standard for a civil complaint). But the court need not accept as true legal conclusions phrased as factual allegations, “unwarranted inferences,” “unreasonable conclusions,” and “naked аssertions devoid of further factual enhancement.” Id.; cf. United States v. Iaquinta, No. 5:98-HC-764-BR, 2014 WL 12514789, at *2 (E.D.N.C. Feb. 10, 2014) (denying § 4247(h) motion submitted by
B.
The district court required Maclaren to “state with particularity ‘the extent to which ... [his] psychological/psychiatric condition has improved since he was committed’ and ‘what, if anything, [he] has done to meet the conditions of release specified in § 4248(d)(2).‘” J.A. 83 (quoting Barrett, No. 5:07-HC-2097, ECF 132, at 6). Barrett, in turn, dealt with an Adam Walsh Act detainee‘s § 4247(h) motion which contained just one argument in support: “more than six months have passed since the date of his commitment.” No. 5:07-HC-2097, ECF 132, at 2.
The district court in Barrett denied the motion “because it [was] not properly supported.” Id. at 5. Specifically, the motion didn‘t comply with
The district court here effectively turned Barrett‘s discussion about a § 4247(h) motion‘s noncompliance with procedural rules into a substantive standard for securing a § 4247(h) discharge hearing. Among other departures, the district court drew inferences against Maclaren and weighed the
***
On remand, the district court‘s task will be to decide whether Maclaren‘s motion contains sufficient factual matter, accеpted as true, to state a claim for discharge that is plausible on its face. Finally, we note the government‘s contention that “Maclaren did not proffer any facts to the district court showing there had been a change in his circumstances suggesting that he would no longer be sexually dangerous to others if released.” Appellee‘s Br. at 16. Among other reasons for that being the case, the government says that “[t]hе district court was aware of Maclaren‘s age and medical conditions” when it ordered him committed. Id. But this line of reasoning assumes that the probative value of factors which the district court considered at commitment (here, age and health) cannot change either through the passage of time or due to intervening developments in our understanding of them (here, the switch from the DSM-IV-TR to the DSM-V). Whether such changes suffice to produce a different outcome for Maclaren is a question to resolve at the discharge hearing, should the district court grant one under the standard we announce.
VACATED AND REMANDED
No. 15-4510
United States Court of Appeals, Fourth Circuit.
August 2, 2017
Argued: March 24, 2017