United States District Court, District of Columbia
S. CHUTKAN United States District Judge
matter is before the Court on Defendants' Motion to
Dismiss, ECF No. 12. For the reasons discussed below, the
Court grants the motion.
Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
No. 109-248 § 302, 120 Stat. 587, 620-22 (“the
Act”), allows for the civil commitment of a sexually
dangerous person for treatment after completion of his term
of incarceration in the custody of the Federal Bureau of
In relation to a person who is in the custody of the [BOP],
or who has been committed to the custody of the Attorney
General pursuant to [18 U.S.C. §] 4241(d), or against
whom all criminal charges have been dismissed solely for
reasons relating to the mental condition of the person, the
Attorney General or any individual authorized by the Attorney
General or the Director of the [BOP] may certify that the
person is a sexually dangerous person, and transmit the
certificate to the clerk of the court for the district in
which the person is confined. The clerk shall send a copy of
the certificate to the person, and to the attorney for the
Government, and, if the person was committed pursuant to
[§] 4241(d), to the clerk of the court that ordered the
commitment. The court shall order a hearing to
determine whether the person is a sexually dangerous person.
A certificate filed under this subsection shall stay the
release of the person pending completion of procedures
contained in this section.
18 U.S.C. § 4248(a) (emphasis added). For purposes of
the Act, the term ‘“sexually dangerous
person' means a person who has engaged or attempted to
engage in sexually violent conduct or child molestation and
who is sexually dangerous to others[.]” Id.
§ 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.”
Id. § 4247(a)(6).
court may order that a psychiatric or psychological
examination of the [person] be conducted, ”
id. § 4248(b), prior to a mandatory hearing,
see id. §§ 4247(d), 4248(a). The person
“shall be represented by counsel, ” and
“shall be afforded an opportunity to testify, to
present evidence, to subpoena witnesses on his behalf, and to
confront and cross-examine witnesses who appear at the
hearing.” Id. § 4247(d).
the hearing, if “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.” Id. § 4248(d).
Periodic reports to the court are required, see id.
§ 4247(e), and “counsel for the person 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.” id. § 4247(h). The court
must order the person's immediate release “[i]f,
after the hearing, [it] finds by a preponderance of the
evidence that the person . . . will not be sexually
dangerous to others if released unconditionally.”
Id. § 4248(e)(1). Alternatively, if the person
“will not be sexually dangerous to others if released
under a prescribed regimen of medical, psychiatric, or
psychological care or treatment, ” the court must:
(A) order that he be conditionally discharged under a
prescribed regimen of medical, psychiatric, or psychological
care or treatment that has been prepared for him, that has
been certified to the court as appropriate by the Director of
the facility in which he is committed, and that has been
found by the court to be appropriate; and
(B) order, as an explicit condition of release, that he
comply with the prescribed regimen of medical, psychiatric,
or psychological care or treatment.
Id. § 4248(e)(2). The Act expressly preserves
the person's right to petition for a writ of habeas
corpus to challenge the legality of his detention.
Id. § 4247(g).
James Dow Vandivere and Jon Karl Thompson bring this action
under Bivens v. Six Unknown Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), against current and
former Attorneys General, current and former BOP Directors,
and the members of the Sex Offender Certification Review
Panel. See Compl. at 1 (caption); see id.
¶ 4a. The Complaint alleges that each Defendant in his
or her individual capacity is responsible for Plaintiffs'
“unlawful continued [d]etention . . . beyond the
scheduled release after completion of their . . . prison
sentence[s] from [c]riminal [c]onvictions[.]”
Id. ¶ 1. Defendants allegedly cause Plaintiffs
to suffer “additional punishment . . . other than
penal, without the benefit of a judicial process[,
]” id. ¶ 2 (emphasis in original), and
without “all other constitutional protections that all
citizens of the United States are given and enjoy, ”
id. ¶ 7; see Pls.' Opp'n to
Defs. Reply of 12/22/16 (“Pls.' Surreply”) at
2-3. Plaintiffs further contend that no Defendant had
standing to (1) initiate civil commitment proceedings under
§ 4248 by certifying that Plaintiffs are sexually
dangerous to others, (2) cause the government to file
petitions in the United States District Court for the Eastern
District of North Carolina, or (3) stay their release from
custody when their prison sentences expired. See
Pls.' Opp'n to Defs. Mot. to Dismiss
(“Pls.' Opp'n”) at 5, 16, 20-21.
addition, Plaintiffs challenge the authority of the Eastern
District of North Carolina to cause their post-incarceration
civil commitment pursuant to § 4248. Plaintiffs claim
that the Act violates Article 1, section 9 of the United
States Constitution, which provides that “[n]o Bill of
Attainder . . . shall be passed” by the United States
Congress. U.S. Const. art. I, § 9, cl. 3. Plaintiffs
assert that if the Act pursuant to which Defendants operate
“is a Constitutionally prohibited Bill of Attainder, no
Federal Court could have Art[icle] III jurisdiction, ”
Pls.' Opp'n at 6, “[a]ny decisions made by the
North Carolina Court are VOID and unenforceable, ”
id. at 22 (emphasis in original). Thus, they claim
to be held “by force and without judicial authority.
Id. at 6; see Pls.' Surreply at 9.
demand a “judgment . . . in the amount of $5, 000.00
per day, per [D]efendant, per [P]laintiff, for each day
beyond their scheduled release dates, until ...