United States v. Joaquin Foy

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 10-4728

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UNITED STATES OF AMERICA

v.

JOAQUIN FOY

a/k/a Isa El-Mahde

Joaquin Foy,

Appellant

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 2-03-cr-00393-001)

Honorable Eduardo C. Robreno, District Judge

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Submitted under Third Circuit LAR 34.1(a)

March 27, 2015

BEFORE: GREENAWAY, JR., KRAUSE, and

GREENBERG, Circuit Judges

(Opinion Filed: October 5, 2015)

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Mary Gibbons

600 Mule Road

Toms River, NJ 08757

Attorney for Appellant

Zane David Memeger

United States Attorney

Robert A. Zauzmer

Assistant United States Attorney

Chief of Appeals

Kathy A. Stark

Assistant United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Attorneys for Appellee

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OPINION OF THE COURT

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GREENBERG, Circuit Judge.

I. INTRODUCTION

Joaquin Foy appeals from an order entered by the District

Court in the Eastern District of Pennsylvania on December 7,

2010, denying his motion filed under Fed. R. Civ. P. 60(d)(3) on

November 18, 2010, seeking to vacate an order of civil

2

commitment pursuant to which he was confined at that time and

thus requesting that he be released. Although the Eastern

District Court previously had issued temporary orders

committing Foy, when he filed his motion and the Court denied

it, Foy’s commitment was pursuant to an order of the District

Court for the Western District of Missouri. Accordingly, we

conclude that the Eastern District Court lacked jurisdiction over

Foy’s motion, and we therefore will vacate the order denying the

motion and remand the case to that Court for it to consider

transferring the motion to the Western District of Missouri, and

if it does not so to dismiss the motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

We trace this case to September 30, 2003, when the

government filed a complaint in the Eastern District of

Pennsylvania charging Foy with threatening a federal official in

violation of 18 U.S.C. § 115(a)(1)(B).1 Shortly thereafter, on

the basis of the same conduct alleged in the criminal complaint,

the government filed a petition in the Eastern District of

Pennsylvania seeking revocation of a sentence of probation that

a district court in the Southern District of Texas had imposed on

him. The Eastern District Court conducted a hearing to

determine Foy’s mental competency to stand trial on the

criminal complaint and found that Foy was suffering from a

mental disease or defect that rendered him incapable of assisting

1

There have been many proceedings relating to this competency

matter in various district courts in addition to those that we

describe in this opinion, but we limit our discussion to the ones

germane to our disposition of this case.

3

in his defense. It therefore committed him for a period of 120

days beginning on October 24, 2003, the date of the order, to the

custody of the Attorney General pursuant to 18 U.S.C. §

4241(d), which authorizes temporary hospitalization of a

mentally incompetent defendant for a reasonable period of time,

not to exceed four months, to determine whether the defendant

might attain the necessary capacity for criminal proceedings to

continue and for an additional period of time until either the

defendant’s mental condition improves or the pending charges

against him are disposed of according to law. Following entry

of that order, the government transferred Foy to the Federal

Medical Center at Butner, North Carolina (“FMC Butner”). On

February 7, 2005, the Eastern District Court found that Foy

continued to be incompetent so that he could not stand trial, and

further concluded that there was not a substantial probability

that he would attain that level of competency in the foreseeable

future.

Having made those determinations, the Eastern District

Court ordered the warden at FMC Butner to assess Foy’s

dangerousness and decide whether to institute civil commitment

proceedings with respect to him pursuant to 18 U.S.C. §

4246(a). Over the next several months, the Court ordered

additional assessments of Foy’s dangerousness in light of new

information and, in a particularly significant order, on

September 19, 2005, the Court entered an order stating that Foy

“shall be committed to the custody of the Bureau of Prisons for

reevaluation of his dangerousness pursuant to 18 U.S.C. §

4246(a).” App. at 78. Subsequently, the Court directed the

parties to agree on a date for a hearing to address Foy’s

dangerousness, but, before the Court held this hearing, the

government moved to dismiss the Eastern District criminal

complaint against Foy by reason of his mental condition. The

4

Court granted this motion on December 19, 2005, and dismissed

the complaint. More than three years later on January 9, 2009,

the Eastern District Court terminated Foy’s probation included

in the sentence imposed in the earlier prosecution in the

Southern District of Texas.

Prior to the Eastern District Court dismissing the criminal

complaint, the government transferred Foy to the United States

Medical Center for Federal Prisoners in Springfield, Missouri, in

the Western District of Missouri. On December 16, 2005, the

Springfield warden certified pursuant to § 4246(a) that Foy was

suffering from a mental disease or defect so that his release

would pose a substantial risk of bodily injury or serious property

damage to another and that suitable arrangements for state

custody were not available. Accordingly, on December 21,

2005, two days after the Eastern District Court dismissed the

criminal complaint against Foy, the government filed a petition

pursuant to § 4246 in the Western District of Missouri, seeking a

hearing on Foy’s dangerousness.

Foy moved to dismiss the Western District petition,

arguing that the Eastern District of Pennsylvania had lacked

jurisdiction when it ordered his reevaluation under § 4246(a)

when he was confined at FMC Butner. The District Court in the

Western District of Missouri ruled on the motion in an opinion

of May 9, 2007, stating:

A review of the records and files in this

case clearly establishes that in its order of

September 19, 200[5], the United States District

Court for the Eastern District of Pennsylvania did

not order defendant committed under the

provisions of § 4246, but rather ordered that the

5

Bureau of Prisons reassess whether a § 4246

petition was appropriate. After that reassessment

occurred, the instant petition was properly filed in

this court.

App. at 119. The Western District of Missouri subsequently

held a hearing to ascertain Foy’s dangerousness, if any, and on

September 12, 2007, ordered Foy committed pursuant to §

4246(d). Foy appealed, but the Court of Appeals for the Eighth

Circuit affirmed.

As required by 18 U.S.C. § 4247(e)(B), the Springfield

medical facility thereafter sent to the district court in the

Western District of Missouri annual reports concerning Foy’s

mental condition and its recommendations regarding his need

for continued commitment. Insofar as reflected in the record

before us, since 2009 these reports have recommended Foy’s

conditional release. However, notwithstanding these

recommendations, Foy has not been released because he refuses

to accept possible conditions on his release.

Rather than accept a conditional release, Foy has sought

to be released unconditionally by instituting proceedings in both

the Western District of Missouri and the Eastern District of

Pennsylvania.2 Thus, on August 5, 2010, Foy filed a habeas

corpus petition in the Eastern District of Pennsylvania seeking

his release pursuant to 28 U.S.C. § 2241, but that Court

2

He also has sought relief in the Eastern District of North

Carolina and, inasmuch as he had been transferred to the Federal

Medical Center in Rochester, Minnesota, in the District of

Minnesota. See, e.g., Foy v. U.S. Gov’t, Civ. No. 15-1901,

2015 WL 2131410 (D. Minn. May 7, 2015).

6

transferred the petition to the Western District of Missouri on

August 18, 2010. The Western District of Missouri dismissed

the petition with prejudice and, on Foy’s appeal, the Court of

Appeals for the Eighth Circuit affirmed the order of dismissal.

Then, on September 4, 2014, counsel filed a motion on Foy’s

behalf in the Western District of Missouri seeking an order for

Foy’s discharge pursuant to 18 U.S.C. § 4247(h). That court

held a hearing on the motion at which Foy testified and was

represented by counsel. The court denied the motion on October

21, 2014.

As the foregoing proceedings in the Western District of

Missouri unfolded, Foy initiated pro se proceedings in the

Eastern District Court seeking to secure his release. First, on

July 8, 2010, he filed a motion to vacate, set aside, or correct

sentence under 28 U.S.C. § 2255. Because Foy did not use the

standard form then in use for such a motion in that district, the

Court directed its clerk to furnish Foy with that form, which

contains information regarding the consequence of filing such a

motion. The Eastern District Court eventually dismissed the

motion because Foy failed to submit the form within the time it

had afforded him.

After he filed the § 2241 habeas corpus petition to which

we refer above, Foy, on November 18, 2010, filed a pro se

pleading entitled “Motion to Vacate Judgment of Civil

Commitment Rule 60(d)(3) Fed. R. Civ. P.” in the Eastern

District seeking his immediate release. App. at 4. The Eastern

District Court denied the November 18, 2010 motion on

December 7, 2010, and Foy appealed, bringing the case to us. A

panel of this Court appointed counsel for Foy and, by order

dated March 28, 2011, directed the parties to discuss at least the

following issues:

7

(1) whether Foy’s ‘Motion to vacate judgment of

civil commitment pursuant to Rule 60(d)(3) Fed.

R. Civ. P.’ can be considered (a) a Rule 60(b)

motion, (b) an attempt to seek habeas relief,

and/or (c) a motion pursuant to 18 U.S.C. §

4246(e) for discharge from confinement or for a

hearing; (2) whether, if Foy’s motion includes a

plea for habeas relief, (a) he proceeds under 28

U.S.C. § 2255, 28 U.S.C. § 2241, or some other

provision, and (b) whether the avenue under

which he proceeds is available to him generally,

see United States v. Budell, 187 F.3d 1137, 1141

& n.9 (9th Cir. 1999); see also Phelps v. United

States Fed. Gov’t, 15 F.3d 735, 737 (8th Cir.

1994), and/or in the District Court for the Eastern

District of Pennsylvania, see Rumsfeld v. Padilla,

542 U.S. 426, 447[, 124 S.Ct. 2711, 2724] (2004);

(3) whether, if Foy was seeking habeas relief and

could not do so in the District Court for the

Eastern District of Pennsylvania, the District

Court should have transferred his filing in the

interest of justice, see 28 U.S.C. § 1631; and (4)

whether the dictates of 18 U.S.C. § 4246(e) have

been followed in this case in the District Court.

App. at 3. The parties capably addressed these issues in their

briefs. We now adjudicate the matter.

III. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291 as the

8

Eastern District Court’s denial of Foy’s request for release from

civil commitment fully resolved the litigation before it. See

Bryan v. Erie Cnty. Office of Children & Youth, 752 F.3d 316,

320-21 (3d Cir. 2014); Penn W. Assocs., Inc. v. Cohen, 371

F.3d 118, 123-24 (3d Cir. 2004). Though the Eastern District

proceedings did not preclude Foy from later moving for

discharge under 18 U.S.C. § 4247(h), that possibility does not

undermine the finality of the Eastern District Court’s order. See

United States v. Stewart, 452 F.3d 266, 272-73 (3d Cir. 2006).

Of course, our jurisdiction over this appeal does not

establish that the Eastern District Court had jurisdiction in the

first place. Accordingly, the government has been free to

contend that the District Court did not have jurisdiction over

Foy’s motion for release, and it does exactly that. In

considering that contention, we exercise plenary review. See

Bryan, 752 F.3d at 321 n.1. Because Foy filed his motion pro

se, we construe it liberally and consider not only the Rule 60(d)

label that he attached to it but any other bases that could have

given the Eastern District Court jurisdiction over the motion.

See United States v. Miller, 197 F.3d 644, 647-48 (3d Cir.

1999). If, after doing so, we conclude that the Eastern District

Court lacked jurisdiction, we must direct it to dismiss Foy’s

motion without addressing the merits of the case or transfer the

case to the Western District of Missouri pursuant to 28 U.S.C. §

1631. See Babcock & Wilcox Co. v. Kan. City S. Ry. Co., 557

F.3d 134, 137 (3d Cir. 2009).

IV. DISCUSSION

When a panel of this Court originally reviewed this

appeal it discerned five possible bases for the Eastern District

9

Court to have had jurisdiction over Foy’s request for release in

his November 18, 2010 motion, and, as we have explained, it

directed the parties to address them in their briefs and they have

done so: (1) 18 U.S.C. § 4247(h)3; (2) Fed. R. Civ. P. 60(b); (3)

Fed. R. Civ. P. 60(d); (4) 28 U.S.C. § 2255; and (5) 28 U.S.C. §

2241. We address these bases in turn and conclude that none of

them afforded the Eastern District Court jurisdiction to

determine if it should grant Foy’s motion for release from civil

commitment. We further conclude that we should remand the

case to the Eastern District Court to determine whether that

Court should transfer the case pursuant to 28 U.S.C. § 1631 to a

different court that would have had jurisdiction over Foy’s

request for release, i.e., the Western District of Missouri.

A. 18 U.S.C. § 4247(h)

Foy primarily argues on this appeal that his motion for

release should be treated as a motion for discharge under 18

U.S.C. § 4247(h). Section 4247(h) authorizes a committed

individual to file a motion for a hearing to determine whether he

should be discharged from the commitment facility. However,

the motion may be filed only “during such person’s

3

The panel’s order to the parties regarding which issues to

discuss referenced § 4246(e), rather than § 4247(h). However,

unlike § 4247(h), § 4246(e) applies only when the director of the

commitment facility files a certificate attesting that the

committed individual has recovered to the extent that the

individual’s release no longer would pose a substantial risk of

bodily injury or serious property damage to another. Given that

Foy concedes that this triggering event did not occur, see

appellant’s br. at 44 n.13, we consider instead the possibility for

relief under § 4247(h).

10

commitment” with “the court that ordered the commitment.” 18

U.S.C. § 4247(h); see Archuleta v. Hedrick, 365 F.3d 644, 649

(8th Cir. 2004) (“Archuleta is in custody by reason of a

commitment order issued by the District of Utah. Only that

court . . . may grant the statutory relief he seeks, either

conditional or unconditional release.”); United States v. Budell,

187 F.3d 1137, 1142 (9th Cir. 1999) (stating that committed

individuals “will remain hospitalized until ordered discharged

by the court that ordered the commitment”). Accordingly, Foy

could not bring his § 4247(h) motion in the Eastern District of

Pennsylvania because when he filed the motion and, indeed,

when the Court denied it, he was committed pursuant to the

September 12, 2007 order of the Western District of Missouri.

Foy contends that the Eastern District Court had

jurisdiction based on its September 19, 2005 order that Foy

“shall be committed to the custody of the Bureau of Prisons for

reevaluation of his dangerousness pursuant to 18 U.S.C. §

4246(a).” App. at 78. But as the Western District of Missouri

noted, when the Eastern District Court entered that order, it “did

not order [Foy] committed under the provisions of § 4246, but

rather ordered that the Bureau of Prisons reassess whether a §

4246 petition was appropriate.” Id. at 119. Unlike the Western

District of Missouri, the Eastern District Court has not issued a

final order of commitment with respect to Foy pursuant to §

4246(d). Moreover, when Foy filed his motion under Rule

60(d)(3) on November 18, 2010, he no longer was committed

under the Eastern District Court’s temporary order of

commitment of September 19, 2005. In authorizing a committed

individual to file a motion for discharge “during such person’s

commitment” with “the court that ordered the commitment,” §

4247(h) offers an avenue for relief only in the court that ordered

the commitment under which the petitioner was committed

11

when he filed his petition. See Archuleta, 365 F.3d at 649.

Our foregoing analysis makes clear that the Eastern

District Court’s earlier, no longer applicable order of temporary

commitment, did not afford it with jurisdiction to entertain Foy’s

challenge to his confinement at the time he filed his November

18, 2010 motion. Cf. United States v. Baker, 807 F.2d 1315,

1325 (6th Cir. 1986) (holding that, notwithstanding its decision

to vacate district court’s commitment order, court of appeals

lacked jurisdiction to order release of defendant because

subsequent proceedings had been initiated with respect to him

under § 4246(a) in district of defendant’s confinement, thereby

staying his release); United States v. Hardy, 770 F. Supp. 2d

410, 412-13 (D. Me. 2011) (rejecting argument that court’s

earlier order of commitment under § 4241(d) provides it with

continuing jurisdiction to initiate dangerousness evaluation after

that commitment has ended).

B. Fed. R. Civ. P. 60(b), (d)

Foy’s attempt to assert jurisdiction based on Fed. R. Civ.

P. 60(b) or (d) fails for similar reasons. Rule 60(b) authorizes a

party to move for relief from a final judgment, order, or

proceeding based on various specified grounds, including, as

Foy contends is applicable here, because “applying the [the

judgment] prospectively is no longer equitable” or for “any

other reason that justifies relief.” Fed. R. Civ. P. 60(b)(5), (6).

Rule 60(d) is a savings clause, clarifying that Rule 60 does not

limit a court’s power, among other things, to “entertain an

independent action to relieve a party from a judgment, order, or

proceeding.” Fed. R. Civ. P. 60(d)(1); see Jackson v. Danberg,

656 F.3d 157, 166 (3d Cir. 2011) (“Rule 60(d) permits a court to

entertain an independent action to relieve a party from a

12

judgment in order to ‘prevent a grave miscarriage of justice.’”

(quoting United States v. Beggerly, 524 U.S. 38, 47, 118 S.Ct.

1862, 1868 (1998))).4 Nevertheless, Rule 60 by itself does not

vest a district court with jurisdiction to consider such a motion

or independent action. See Fed. R. Civ. P. 82 (“These rules do

not extend or limit the jurisdiction of the district courts or the

venue of actions in those courts.”); Palkow v. CSX Transp., Inc.,

431 F.3d 543, 555 (6th Cir. 2005) (stating that district court

required “an independent statutory basis” to exercise jurisdiction

over claim framed as Rule 60 motion or independent action).

Ordinarily, it would be clear that a district court would

have jurisdiction over a Rule 60 motion or an independent

action seeking relief from a judgment because the court will

have ancillary jurisdiction to consider a challenge to its own

judgment or order. See Beggerly, 524 U.S. at 46, 118 S.Ct. at

1867 (citing Pac. R.R. of Mo. v. Mo. Pac. Ry. Co., 111 U.S.

505, 522, 4 S.Ct. 583, 592 (1884)) (“The Government is . . .

wrong to suggest that an independent action brought in the same

court as the original lawsuit requires an independent basis for

jurisdiction.”); Budget Blinds, Inc. v. White, 536 F.3d 244, 251

(3d Cir. 2008) (“The power of a court to invoke Rule 60(b) to

vacate its own earlier judgment is unquestioned.”). Foy

attempts to rely on this basis for jurisdiction, pointing to the

initiation of commitment proceedings under 18 U.S.C. § 4246 in

the Eastern District Court and its September 19, 2005 order

committing him for a reassessment of his dangerousness. As

discussed above, however, the commitment order under which

4

Foy’s pro se motion cited Rule 60(d)(3), which preserves a

court’s power to “set aside a judgment for fraud on the court,”

but his brief frames his motion as attempting to assert an

independent action as authorized by Rule 60(d)(1).

13

Foy was confined when he filed his November 18, 2010 motion,

and therefore the order from which he sought relief in asking for

his immediate release, had been issued in the Western District of

Missouri, not by the Eastern District Court.

We emphasize that the Eastern District Court’s earlier

order of temporary commitment did not provide it with

jurisdiction to revisit a distinct order of commitment entered by

a different court. See Baker, 807 F.2d at 1325. Though we

recognize that there may be circumstances in which a district

court has jurisdiction over a Rule 60 motion or an independent

action seeking relief from a judgment entered by another court,

such as where a party to initial proceedings registers a judgment

obtained in another court pursuant to 28 U.S.C. § 1963, see

Budget Blinds, 536 F.3d at 251-54, 254 n.12, Foy does not point

to such an independent ground for jurisdiction here.5

5

Of course, the Eastern District Court would have had

jurisdiction over a challenge to its September 19, 2005 order of

temporary commitment, but such jurisdiction would not have

authorized it to order Foy’s release from his current

commitment, the identified aim of his pro se motion. Though

we do not reach a conclusion on the point as we have no need to

do so, we recognize that arguably the Eastern District Court

lacked authority to initiate the preliminary § 4246 commitment

proceedings because it was not “the court for the district in

which [Foy was] confined” when the Court entered the order as

he was confined in FMC Butner at that time. 18 U.S.C. §

4246(a); see, e.g., United States v. Charters, 863 F.2d 302, 314

(4th Cir. 1988) (en banc); Baker, 807 F.2d at 1324; United

States v. Steil, 753 F. Supp. 806, 808-09 (D. Minn. 1989). But

see United States v. Godinez-Ortiz, 563 F.3d 1022, 1032 (9th

Cir. 2009) (holding that district court in Southern District of

14

C. 28 U.S.C. §§ 2255 and 2241

Foy correctly concedes that the other two suggested

grounds for Eastern District jurisdiction that we set forth in our

March 28, 2011 order are inapplicable. He cannot rely on 28

U.S.C. § 2255, which authorizes a “prisoner in custody under

sentence” to challenge the sentence, because he currently is not

serving a sentence. See Archuleta, 365 F.3d at 648 (stating

civilly committed individual not eligible for relief under §

2255); Budell, 187 F.3d at 1141 (same). Nor can Foy frame his

request for release as a habeas corpus petition under 28 U.S.C. §

2241 as he only could pursue such relief in the district in which

he was confined, and when he filed the motion leading to the

order now on appeal he was not confined in the Eastern District

of Pennsylvania. See Rumsfeld v. Padilla, 542 U.S. 426, 447,

124 S.Ct. 2711, 2724 (2004) (“Whenever a § 2241 habeas

petitioner seeks to challenge his present physical custody within

the United States, he should name his warden as respondent and

file the petition in the district of confinement.”). Thus,

regardless of how we frame Foy’s request for release, the

Eastern District Court should not have considered it on the

California acted within its authority in temporarily returning

defendant to North Carolina medical facility for that facility to

evaluate defendant’s dangerousness and decide whether to issue

certificate of dangerousness pursuant to § 4246); United States

v. Wheeler, 744 F. Supp. 633, 635, 639-40 (E.D. Pa. 1990). But

even if we concluded that the Eastern District Court erred in

initiating such proceedings our conclusion would not invalidate

the Western District of Missouri’s separate § 4246 proceedings

and its resulting order of commitment. See Baker, 807 F.2d at

1325.

15

merits if it did so.

D. Transfer Pursuant to 28 U.S.C. § 1631

Our determination that the Eastern District Court did not

have jurisdiction leaves open the question of whether this case

should be transferred pursuant to 28 U.S.C. § 1631 to the

Western District of Missouri as that court would have

jurisdiction to entertain the motion.6 We do not know whether

the Eastern District Court considered that possibility because the

Court in its order of December 7, 2010, denying Foy’s motion of

November 18, 2010, seeking his immediate release did not give

an explanation denying the motion. Accordingly, we do not

know if the Eastern District Court denied the motion because it

believed that it did not have jurisdiction or because it

determined that the motion was not meritorious. In the

circumstances, we will remand the matter to the Eastern District

Court to consider whether to transfer the case to the Western

District of Missouri.7

6

Of course, Foy contends that the Eastern District Court had

jurisdiction so a transfer was not necessary.

7

Though we ordinarily might not comment on the merits of the

transfer issue and simply would remand the case to the Eastern

District Court to consider whether to transfer the case to the

Western District of Missouri we will comment on the merits in

view of Judge Krause’s partial dissent. We point out initially

that Foy refuses to accept conditions on his release, even though

he could have been released as early as 2009 if he had been

willing to do so. Although Judge Krause indicates that

conditions on Foy’s release could be enforced even if he does

not consent to them, Foy’s refusal to agree to such conditions

16

signals that he would not regard himself as bound by them and

forewarns of trouble to come if he is released. Moreover, if he

does not abide by the conditions of release there could be

serious consequences before steps could be taken to enforce the

conditions. In this regard, Foy’s Rule 60 motion sought nothing

less than his immediate and unconditional release from custody.

Given Foy’s sole aim of securing immediate and unconditional

release and his unwillingness to accept anything less, arguably

“the interests of justice [would be] best served by terminating

this litigation because its continuation wastes judicial resources

while moving [him] no closer to [his] goal.” LeBlanc v. Holder,

784 F.3d 206, 210 (4th Cir. 2013).

Moreover, it seems clear that it would be a futile waste of

judicial and party resources to transfer the case to the Western

District of Missouri as within the last year on October 21, 2014,

that court denied Foy the relief he seeks here. See Campbell v.

Office of Pers. Mgmt., 694 F.2d 305, 309 n.6 (3d Cir. 1982).

Moreover, the interest of justice does not require a transfer here

to protect Foy’s rights because if Foy changes his mind

regarding his desired relief, a determination that the Eastern

District Court did not have jurisdiction would not pose an

obstacle to him if he initiates a new case as § 4247(h) authorizes

committed individuals to file successive motions for discharge

and the government has the ongoing duty to seek a conditional

release or placement for him in a state facility. The situation

here therefore differs from a case where a transfer is necessary

to preserve a litigant’s substantive interests, such as would be

the situation when a statute of limitations has run so that if the

litigant is required to institute a new proceeding to seek relief,

his complaint would be subject to dismissal as untimely.

17

V. CONCLUSION

For the foregoing reasons, we will vacate the District

Court’s order entered on December 7, 2010, denying Foy’s Rule

60 motion and will remand the case to the Eastern District Court

for it to consider whether to transfer the case to the Western

District of Missouri. If the Eastern District Court does not

transfer the case it should dismiss the motion for lack of

jurisdiction. The parties will bear their own costs on this appeal.

18

KRAUSE, Circuit Judge, concurring in part and dissenting in

part:

Joaquin Foy’s case is nothing short of Kafkaesque and

cries out to be heard by some court of competent jurisdiction.

Despite not having stood trial and not having been convicted

of a crime, Foy has been confined in federal penal institutions

continuously since 2003. For the last six of these years, Foy’s

civil commitment under the Insanity Defense Reform Act of

1984 (“IDRA”), 18 U.S.C. §§ 17, 4241-47, has continued

despite the fact that a panel of experts repeatedly has

recommended that he be released because he poses no danger

to others if released under a prescribed regimen of care, and

despite the fact that the IDRA expressly provides in such

circumstances that a court “shall . . . order that [the

individual] be conditionally discharged under a prescribed

regimen of medical, psychiatric, or psychological care or

treatment.” 18 U.S.C. § 4246(e)(2)(A). Foy has also raised

serious concerns that the Government has not complied with

the statutory safeguards designed to prevent indefinite federal

incarceration under the IDRA, including the requirement that

it exert all reasonable efforts to find a suitable placement for

Foy in a state facility, such as a group home or similarly less

restrictive setting.

For these reasons, while I agree with the majority that

the District Court for the Eastern District of Pennsylvania

lacked jurisdiction over Foy’s motion to vacate his civil

commitment and have no doubt that the District Court will

carefully consider whether the “interest of justice” standard

requires a transfer to a court that does have jurisdiction, I see

no reason not to expedite the process by remanding with

instructions to transfer, as a transfer in this case is so clearly

1

“in the interest of justice.” 28 U.S.C. § 1631. On this point, I

respectfully dissent.1

1

Although the majority remands for the District Court

to decide the question of transfer in the first instance, it oddly

proceeds to suggest in dictum that transfer may not be not

warranted (1) because Foy is not entitled to the unconditional

release he would prefer, but only to conditional release; (2)

because, in the majority’s view, transfer would be futile as the

Western District of Missouri has denied unconditional release

in the past; and (3) because the hypothetical possibility

remains that Foy could initiate a new action in Missouri and

attempt to file a successive motion pro se or through counsel

if he can obtain one. Notably, however, the majority does not

dispute that, as set forth in detail below, under the IDRA,

Foy’s conditional release on this record appears to have been

mandatory and thus to have been unlawfully denied, and Foy

has raised compelling statutory and due process arguments

here, concerning the Government’s imposition of an extra-

statutory condition of his express agreement to the conditions

of release, that have never been presented to the Western

District of Missouri. For these reasons and those described

more fully below, the “interest of justice” standard leaves no

room for debate that the courts of our Circuit should promptly

transfer this action to the Western District of Missouri so that

the merits of Foy’s substantial claims can be considered

without further delay by a court of competent jurisdiction; the

matter is recognized by the transferee court as warranting

appointment of counsel; and Foy’s six-plus years of what

appears to be unauthorized detention are not prolonged

indefinitely by Foy’s inability to overcome procedural barriers

to successive filings or his inability to present coherent

2

I.

Whenever a federal court lacks jurisdiction over a civil

action, § 1631 states in mandatory terms that the court “shall,

if it is in the interest of justice, transfer such action” to

another federal court in which the action could have been

brought at the time it was filed. 28 U.S.C. § 1631 (emphasis

added). This determination may involve undertaking some

“limited review of the merits” of the underlying claims.

Phillips v. Seiter, 173 F.3d 609, 611 (7th Cir. 1999). After

all, it is not “in the interest of justice” to transfer a claim that

plainly fails. See Adeleke v. United States, 355 F.3d 144, 152

(2d Cir. 2004). However, it is clear after reviewing the

relevant statutory scheme and the facts of Foy’s case that his

claims relate to significant potential statutory and

constitutional violations and they should be decided by a

court that is able to hear them.

Foy’s incarceration in federal detention centers under

the IDRA began in 2003, when he was found to be

incompetent to stand trial for verbally threatening a federal

official.2 Foy was initially incarcerated under 18 U.S.C. §

arguments in pro se motions about the very serious issues

presented by this case.

2

The IDRA is phrased in terms of “treatment in a

suitable facility,” but this “treatment” period has been

repeatedly equated to incarceration. See Henry v. Ciccone,

440 F.2d 1052, 1054 (8th Cir. 1971) (Clark, J., Associate

Justice, United States Supreme Court, sitting by designation)

(“Again and again we have recognized that the [federal

medical center] is a penal institution and that one confined

there suffers incarceration.”).

3

4241, which allows federal detention centers to hold criminal

defendants for a recovery period while they are temporarily

incompetent to stand trial. The IDRA further provides that

federal detention may continue under 18 U.S.C. § 4246 at the

end of this temporary recovery period if the defendant’s

mental condition has not improved as to permit the

proceedings to go forward. 18 U.S.C. § 4241(d). Thus, in

2005, the District Court ordered that Foy be detained under §

4246 because he was incompetent to stand trial and there was

no substantial probability that his competency would be

restored in the foreseeable future. Shortly thereafter, it

granted dismissal of the sole criminal charge, and the criminal

case against Foy was then closed. His detention under §

4246, however, continued.

But ongoing detention under § 4246 after the initial

recovery period has elapsed is a last resort—it is only

available if a person poses an ongoing danger to others in the

“rare circumstances where [he] has no permanent residence or

there are no state authorities willing to accept him for

commitment.” S. Rep. 98-225, at 250 (1983), reprinted in

1984 U.S.C.C.A.N. 3182, 3432; see also United States v.

Lapi, 458 F.3d 555, 563 (7th Cir. 2006) (observing that §

4246 is “drafted narrowly” and applies only in rare

circumstances). The IDRA therefore contains two important

statutory safeguards to prevent indefinite incarceration in a

federal facility. First, the ongoing detention must be

predicated on the person’s dangerousness if released, and,

second, the Government has a continuing responsibility to

find suitable arrangements for state custody and care. 18

U.S.C. § 4246(a), (d)-(e). Foy alleges that the Government

has complied with neither because there is little evidence in

the record that it has taken appropriate steps to effectuate an

4

appropriate conditional release for Foy and it has not satisfied

its duty even to seek, much less find, a suitable state

placement for Foy.

A.

Turning to the first of these statutory safeguards, the

IDRA requires that the Government file annual reports on a

detainee’s mental condition to justify his ongoing

commitment, 18 U.S.C. § 4247(e)(1)(B), and requires that,

when a detainee is no longer dangerous under a prescribed

regimen of medical care, the director of the detaining facility

must initiate a discharge procedure with the district court, 18

U.S.C. § 4246(e), and the court that ordered the detainee’s

civil commitment must order his conditional release, 18

U.S.C. § 4246(e)(2)(A). Since 2009, the annual reports by

the Risk Assessment Panel at the U.S. Medical Center for

Federal Prisoners in Springfield, Missouri have repeatedly

concluded that Foy’s release would not create a substantial

risk of danger to others or the property of others with the

appropriate medication and care.3 The Panel therefore has

recommended in each of the last five reports available in the

record that Foy be conditionally released to a group home or

similarly structured entity in the community. Despite these

recommendations, the facility holding Foy has not initiated

proceedings to release him, and Foy remains detained.

The Government’s retort—that it lacks sufficient

assurance Foy will fulfill his conditions of release because he

wants an unconditional release and is unwilling now to sign a

3

Foy states in his brief, which was not filed under seal,

that the annual Risk Assessment Review Reports, which were

filed under seal, reach this conclusion. Appellant’s Br. 12.

5

certification of future compliance—seems reasonable enough

on first impression. Under inspection, however, it raises

serious questions under the IDRA and the Constitution that

warrant careful scrutiny by a court of competent jurisdiction.

First, how is predicating Foy’s release on his written

agreement to the conditions of release permissible given the

plain language of the IDRA? The statute states, in mandatory

terms, that once the facility director has determined that a

detainee will not pose a threat to society if released on a

prescribed regimen of medical care, the director “shall

promptly file a certificate to that effect” with the court that

ordered civil commitment, 18 U.S.C. § 4246(e) (emphasis

added), and that, following a hearing to confirm the safety of

conditional release, “the court shall . . . order that [the

detainee] be conditionally discharged under a prescribed

regimen of medical, psychiatric, or psychological care or

treatment.” 18 U.S.C. § 4246(e)(2)(A) (emphasis added). The

statute does not provide for and hardly seems to leave room

for the imposition by a facility of its own requirement that a

detainee agree in writing to abide by the conditions of release.

Cf. Shalom Pentecostal Church v. Acting Sec’y U.S. Dep’t of

Homeland Sec., 783 F.3d 156, 167 (3d Cir. 2015) (striking as

ultra vires an agency regulation imposing an additional

requirement on criteria for entitlement to visa issuance on the

ground that such requirement was inconsistent with the plain

language of the statute).

Second, why doesn’t the IDRA itself squarely resolve

the Government’s purported concerns that it lacks assurance

of Foy’s future compliance with the conditions of his release

or that those conditions somehow might be unenforceable

without Foy’s signature on a document? An enforceable

court order would seem dispositive on this point, and the

6

statute here expressly requires not only that the District Court

“shall . . . order that [the detainee] be conditionally

discharged under a prescribed regimen of medical,

psychiatric, or psychological care or treatment,” but also that

the court “order, as an explicit condition of release, that [the

detainee] comply with the prescribed regimen of medical,

psychiatric, or psychological care or treatment.” 18 U.S.C. §

4246(e)(2)(A)-(B) (emphasis added).

Indeed, the position taken by the Government here—

that a signed certification is somehow needed to ensure future

compliance with the conditions of release—ironically was

disavowed by the Government and repeatedly rejected by the

courts in the criminal context, where, until its repeal in 1982,

18 U.S.C. §§ 4163-64, provided in similar terms for the

mandatory release on specified conditions of inmates who

had served their full terms of imprisonment. In subsequent

litigation over the enforceability of those conditions against

inmates who had refused to sign or challenged the validity of

pre-release certifications of compliance, the courts routinely

sided with the Government that the absence of a signed form

was irrelevant and the conditions were enforceable as part of

the statutorily mandated release. See Robinson v.

Willingham, 369 F.2d 688, 689 (10th Cir. 1966) (“Congress

has fixed the conditions attached to a mandatory release and

those conditions are not effected by the releasee signing or

failing to sign a release agreement.”); Hicks v. Reid, 194 F.2d

327, 329 (D.C. Cir. 1952) (rejecting petitioner’s argument

that his failure to sign a document setting forth the conditions

of release relieved him of obligation to comply because the

statute “not only created the right to release but also imposed

7

conditions thereon” such that “[b]oth are mandatory and

neither can be avoided by dissent”).4

In none of these cases did the inmate’s refusal to sign a

document agreeing to abide by the conditions of release either

provide a basis to delay the release mandated by the terms of

the statute or render those conditions of release

unenforceable. Nor today, as far as I can ascertain, is it the

policy of the Bureau of Prisons to refuse to release an inmate

who has served out his term of imprisonment because the

inmate is unwilling to sign a written assurance that he will

abide by the conditions of his supervised release—even if

there is good reason to be concerned that the inmate will

violate those conditions upon release. Thus, it may well be

that a detainee’s “refusal to agree to such conditions signals

that he would not regard himself as bound by them and

forewarns of trouble to come if he is released.” Maj. Op. 15

n.7. But when no such writing is required for the release of a

4

See also McMillan v. Parker, 254 F. Supp. 365, 366

(M.D. Pa. 1966), aff’d, 378 F.2d 444 (3d Cir. 1967) (per

curiam) (“The mere fact that petitioner did not sign the

certificate of mandatory release will not relieve him of the

conditions imposed on said release. . . . His release was

subject to those conditions regardless of whether the

certificate was signed or not.”); Donahue v. U.S. Parole

Comm’n, 603 F. Supp. 1310, 1312 (S.D. Fla. 1985)

(“Plaintiff’s refusal to sign his Certificate of Mandatory

Release is irrelevant to his being subject to the terms and

conditions enunciated therein. Congress has fixed the

conditions attached to a mandatory release and those

conditions are not affected by the failure or refusal of the

releasee to sign the release agreement.”).

8

convicted defendant, a court of competent jurisdiction should

consider whether it accords with the IDRA and the

Constitution for that extra-statutory precondition to be

imposed on civilly committed persons who have not been

convicted of any crime.

Third, conditions of release from imprisonment are

typically enforced as a consequence that follows from future

non-compliance with those conditions, and not through

indefinite detention unless and until an inmate commits in

writing to abide by those conditions. See 18 U.S.C. §

3583(e)(3) (allowing for revocation of supervised release

upon a finding that the defendant violated a condition of

release). Consistent with this norm, the IDRA by its terms

contemplates the possibility of future non-compliance with

conditions of release and specifies a single mechanism to

enforce those conditions: arrest and revocation of release if

the facility to which the individual is released reports that the

individual has failed to comply with the conditions. 18

U.S.C. § 4246(f). How then does a facility’s prophylactic

enforcement—preempting any opportunity for non-

compliance by refusing to certify a qualified detainee for

conditional release as required under § 4246(e)—comport

with either the statute or the Constitution? After all, civilly

committed persons remain entitled to due process, Foucha v.

Louisiana, 504 U.S. 71, 80 (1992); Addington v. Texas, 441

U.S. 418, 425 (1979), and detaining such persons indefinitely

on the basis of a requirement that is neither authorized by

statute nor necessary to enforce the conditions of release

might well be viewed as arbitrary and capricious government

action, cf. Greenholtz v. Inmates of the Neb. Penal & Corr.

Complex, 442 U.S. 1, 11-12 (1979); Wolff v. McDonnell, 418

U.S. 539, 556-57 (1974).

9

The Government suggests, and the majority seems to

find significant, that by insisting on unconditional release,

Foy appears to have made a deliberate choice of no release

over conditional release. Appellee’s Br. 3, 54 n.13; Maj. Op.

15 n.7. But the argument proves too much, for while a

rational actor might well go through the motions of signing a

form necessary to secure his release from a federal prison,

whatever his actual intentions, no one argues that Foy is

making rational choices or is free of mental illness. Indeed,

that is the very reason he has been recommended for

conditional release and the reason that the IDRA speaks in

mandatory terms that do not turn on the purported “choice” of

the detainee. Regardless of whether a civilly committed

individual irrationally insists on unconditional release or even

irrationally prefers to remain in a federal prison over a less

restrictive state facility, once he is determined not to pose a

danger upon release with appropriate conditions (as six years

of reports attest in Foy's case), the IDRA mandates that the

facility director certify, 18 U.S.C. § 4246(e), and the District

Court, upon confirmatory hearing, order that conditional

release, 18 U.S.C. §§ 4246(e)(2)(A), 4247(h). In sum,

arguably irrational choices of a person with mental illness,

where irrelevant to the statutory qualifications for conditional

release, cannot justify a facility director’s refusal to certify,

much less a federal court’s disregard of the statutory mandate

or its tolerance of deprivations of liberty greater than

necessary. See Greenholtz, 442 U.S. at 11-12; Wolff, 418

U.S. at 556-57.

Fourth, even if it were deemed permissible to

condition Foy’s release on his pre-release assent to the

prescribed regimen of medical care, how is the Government’s

interest in ensuring compliance with this condition (not to

10

mention its presumable interest in reducing by at least one the

ranks of the prison population) actually served by requiring

Foy to go through the motions of signing some form saying

that he promises to self-medicate? Indeed, even assuming the

detainee is a rational actor, what meaningful assurance of

future compliance would any detainee’s signature actually

provide on the one form on which his release from prison

depends? Instead, if the Government is truly interested in

assuring Foy’s future compliance with the condition of

continued medication, wouldn’t it make far more sense for it

to expend de minimus resources identifying a less restrictive

but controlled state facility to which Foy can be released and

where his medication will be properly administered—the

solution also mandated by the IDRA, see infra—than to

deploy yet more prosecutors in yet another jurisdiction

litigating, in effect, the legal significance of Foy’s failure to

affix a virtually meaningless signature to a form document?

Yet, as next discussed, despite the logic of this approach and

despite the Government’s statutory obligation to pursue it,

Foy raises a substantial claim that the Government has

violated this IDRA requirement as well.

B.

The IDRA also requires that the Government “shall

continue periodically to exert all reasonable efforts to cause . .

. a State [where the person is domiciled or was tried] to

assume such responsibility for the person’s custody, care, and

treatment.” 18 U.S.C. § 4246(d). There is only a single

reference in the record to an effort to have a State assume

such responsibility for Foy’s treatment: a 2007 letter from the

Pennsylvania Office of Mental Health & Substance Abuse

Services denying Foy entry to a Pennsylvania State Hospital

for inpatient treatment. The Government acknowledged in

11

2007 that it was obligated by statute to contact the

Commonwealth of Pennsylvania to request a transfer for Foy,

but nothing in the record suggests that that effort was

anything more than perfunctory or that the Government has

made any effort whatsoever to meet this obligation since then.

Foy thus alleges, pointing to substantial support in the record,

that the Government has been violating his statutory rights

under the IDRA.

Moreover, these are not garden-variety statutory

claims. Because of the Government’s alleged violations of

the IDRA, Foy has been subject to an ongoing and indefinite

incarceration for years on end without a conviction and with

the availability of less restrictive state facilities allegedly left

unexplored. And as noted earlier, the circumstances of Foy’s

continued civil commitment in federal custody raise

significant statutory and due process concerns. See Foucha,

504 U.S. at 80; Addington, 441 U.S. at 425. Resolving these

claims is clearly “in the interest of justice.”

II.

Foy may properly raise these challenges to his

detention under the IDRA pursuant to 18 U.S.C. § 4247(h),

which allows Foy’s counsel—given the refusal of the director

of the facility where Foy was detained to file the required

certificate of conditional release—to make a motion for a

hearing to conditionally discharge Foy from his commitment,

and the Government acknowledges that the District Court for

the Western District of Missouri, the court that ordered Foy’s

civil commitment in September 2007, would have jurisdiction

over these claims under that section if this case is transferred.

According to the Government, however, a transfer would be

futile because the district court there “has repeatedly denied

12

exactly the same motion that Foy wants to litigate here.”

Appellee’s Br. 53. The record does not support that

contention.

While Foy undoubtedly has filed numerous petitions

for relief in the Western District of Missouri and elsewhere,

in proceeding pro se in what the record suggests is all but one

of those proceedings, Foy has not been able to coherently

present the claims raised here, so other courts,

understandably, have not reached the merits of those claims.

See, e.g., Foy v. U.S. Gov’t, No. 15-1901, 2015 WL 2131410,

at *2 (D. Minn. May 7, 2015) (“Foy’s petition for habeas

corpus relief is, to say the least, difficult to follow. A good

deal of the petition and accompanying documents consist of

photocopies of books or magazine articles, none of which

appears relevant to any possible claims under § 2241. Much

of the remainder, assumedly written by Foy himself, is nearly

incomprehensible.”); Foy v. Jett, No. 14-5063, 2015 WL

439614, at *1 (D. Minn. Feb. 3, 2015) (“Foy’s petition is

difficult to decipher.”). In the District Court in this case, on

the other hand, Foy had the benefit of a dedicated and diligent

appointed counsel who painstakingly assembled Foy’s court

and detention center records from across the country and

identified potential legal claims under the byzantine

provisions of the IDRA. Counsel’s careful research and

zealous advocacy enabled her to present substantial

challenges to Foy’s ongoing incarceration for the first time in

this Court. Thus, the issues presented here cannot be fairly

characterized as the same ones that Foy has raised

unsuccessfully in his pro se filings.

In addition, despite the majority’s implication

otherwise, the issues presented here are not the same as those

raised in Foy’s single prior counseled proceeding that was

13

initiated in the Western District of Missouri on September 4,

2014 and dismissed shortly thereafter. While it is true that

the district court there “denied Foy the relief he seeks here,”

Maj. Op. 15 n.7 (emphasis added), it is also the case, as

reflected in the transcript of that proceeding, that Foy’s

appointed counsel appears to have accepted the Government’s

contention that Foy was required to agree to the conditions of

his release as a prerequisite to conditional release and

therefore focused his efforts on trying to elicit on the record

Foy’s agreement or explanation for disagreement, see Supp.

App. 178-85. In short, the Western District of Missouri has

never been presented with the statutory and due process

arguments raised by Foy’s counsel in the case that gives rise

to this appeal.

Nor is transfer rendered futile by the theoretical

possibility that Foy could initiate a new proceeding in

Missouri, with a successive motion seeking release under

§ 4247(h). Even assuming Foy were somehow able to

overcome the procedural and logistical hurdles associated

with successive filings, he assuredly will not be able to

present the substantial issues raised by this case if left to

proceed pro se, and his chances of being appointed counsel or

having his arguments seriously considered on the merits

appear vastly diminished in the absence of a transfer. Indeed,

the best case scenario, absent a transfer, is that Foy,

proceeding pro se or somehow securing appointed counsel,

files a new petition re-raising the claims argued here; those

arguments are cogently presented to the District Court for the

Western District of Missouri; and that court eventually grants

Foy’s conditional release—a process that would entail

months, if not years, of additional delay in his conditional

release. Worse, it may never come to pass, and no court will

14

consider the merits of Foy’s significant statutory and

constitutional claims. Transfer is simply the most efficient

and just way of ensuring that an individual, who in our

Circuit received the benefit of devoted counsel, has the

opportunity to have his claims expeditiously addressed in the

appropriate jurisdiction.

Finally, there is no merit to the Government’s

argument that we should decline to order a transfer because

Foy did not request that relief in this case. As even the

majority recognizes, given that Foy has contended that the

District Court here had jurisdiction, his argument of course

has been that a transfer was not necessary. Maj. Op. 15 n.6.

In any event, the statutory language of § 1631 is compulsory

and requires that the court “shall, if it is in the interest of

justice, transfer such action” to a court of competent

jurisdiction, even if it has not been asked to do so by either

party. See Rodriguez-Roman v. I.N.S., 98 F.3d 416, 423 n.9

(9th Cir. 1996) (“The duty imposed on the court is

mandatory. It must determine whether transfer is in the

interests of justice.”); see also Phillips, 173 F.3d at 610.

In sum, I believe that Foy has raised substantial

questions about fundamental deprivations of liberty and due

process extending over many years, and I do not see the

benefit of the added delay inherent in additional briefing on

the transfer issue in the District Court, much less a possible

appeal back to this Court. Rather, the “interest of justice”

would be best served by a swift transfer to the Western

District of Missouri for the district court there to determine

whether Foy’s statutory and constitutional rights have been

violated, and, if they have, the proper remedy for these

violations.

15

* * *

For the above-stated reasons, I would remand this case

with instructions to transfer pursuant to 28 U.S.C. § 1631 and

thereby ensure that Foy has the opportunity, without further

delay, to have his case heard by a court of competent

jurisdiction.

16