United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on petitioner's motion for
discovery and authorization for expert to conduct examination
of respondent (DE 62). The motion has been fully briefed and
is ripe for ruling. For the reasons stated below, the court
grants the motion.
March 30, 2015, respondent voluntarily consented to civil
commitment as a sexually dangerous person pursuant to the
Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C.
§ 4248. Since that time, respondent has been committed
to the custody of the United States Attorney General for sex
offender treatment, housed at the Federal Correctional
Institution in Butner, North Carolina.
and October 2018, respondent arranged for Drs. Hy Malinek and
Joseph Plaud, clinical psychologists, to evaluate
respondent's current sexual dangerousness. Drs. Malinek
and Plaud examined respondent and thereafter authored
evaluation reports opining respondent no longer meets
criteria for commitment under § 4248. Based on these
reports, respondent filed motion for discharge hearing on
February 1, 2019, pursuant to 18 U.S.C. § 4247(h).
March 1, 2019, the court granted respondent's motion for
discharge hearing,  and directed the parties to file proposed
prehearing schedule. On March 7, 2019, petitioner filed the
instant motion for discovery and authorization for expert to
conduct examination of respondent (“motion for
discovery”). The motion was fully briefed. On March 20,
2019, the court stayed previously-imposed deadline for filing
proposed prehearing schedule pending resolution of the
instant motion for discovery.
requests 90-day period of discovery prior to the discharge
hearing. Petitioner seeks to reopen discovery so its retained
expert can examine respondent and prepare evaluation report
addressing whether respondent currently meets criteria for
commitment. Petitioner also intends to conduct discovery
related to Drs. Malinek and Plaud's evaluations,
respondent's progress in treatment, and respondent's
discharge plans. Respondent objects to reopening discovery.
Respondent argues that permitting additional discovery period
would “render obsolete the statutory mandate, ”
purportedly set forth in 18 U.S.C. § 4247(h), that
respondent may petition for discharge hearings every 180
days. (Resp't's Opp'n (DE 64) at 3). Respondent
also argues additional discovery is unnecessary where
respondent has been in petitioner's custody since March
2015 and petitioner has access to his treatment records and
annual forensic evaluations addressing respondent's
court begins with respondent's argument that permitting
prehearing discovery period would violate his right to file
motion for discharge hearing every 180 days, which is
purportedly “mandated” by § 4247(h).
Prehearing discovery period in this case would extend the
180-day interval because a person committed under § 4248
cannot file renewed motion for discharge hearing within 180
days of a court determination regarding his sexual
dangerousness. 18 U.S.C. § 4247(h). If the court grants
the instant motion for discovery, the court's ruling on
respondent's motion for discharge will be delayed and
respondent will not be permitted to file another motion for
discharge hearing within 180 days of the motion he filed on
February 1, 2019.
deciding questions of statutory interpretation, [courts
begin] with the text of the statute.” Othi v.
Holder, 734 F.3d 259, 265 (4th Cir. 2013) (internal
citations omitted). “Unless Congress indicates
otherwise, [courts are to] give statutory terms their
ordinary, contemporary, common meaning.” Id.
(internal quotations omitted). To determine the plain meaning
of a statute, courts “not only look to the language
itself, but also the specific context in which that language
is used, and the broader context of the statute as a
whole.” Id. (internal quotations omitted).
“It is an axiom of statutory construction that courts
are obliged to give effect, if possible, to every word used
by the legislature.” In re Kitchin Equip. Co. of
Va., Inc., 960 F.2d 1242, 1247 (4th Cir. 1992) (internal
the statute provides:
Discharge.--Regardless of whether the
director of the facility in which a person is committed has
filed a certificate pursuant to the provisions of subsection
(e) of section . . . 4248 . . . 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 from such facility, but no such motion may be
filed within one hundred and eighty days of a court
determination that the person should continue to be
committed. A copy of the motion shall be sent to the director
of the facility in which the person is committed and to the
attorney for the Government.
18 U.S.C. § 4247(h). Section 4247(h) states respondent
may petition the court for discharge hearing “at any
time” provided such motion is not filed within 180 days
of prior court determination that respondent meets criteria
for commitment. See id. The 180-day period thus
commences from the date of the most recent court
determination finding respondent should be committed, and,
during that 180-day period, respondent may not file another
motion for discharge hearing. See id. But the
statute does not establish a 180-day “review
period” or permit respondent to file motion for
discharge hearing every 180 days. See United States v.
Francis, 686 F.3d 265, 268 (4th Cir. 2012) (“A
committed individual may seek periodic review of his
confinement [pursuant to § 4247(h)] no sooner than 180
days from the most recent determination by the district
court.”). Accordingly, the plain language of the
statute does not support respondent's position that he is
entitled to petition the court for discharge hearing at
respondent's argument that the requested discovery is
unnecessary and duplicative because respondent is in custody
at the Federal Bureau of Prisons (“BOP”), the
court disagrees. As respondent himself has noted, at the
discharge hearing, “the committed person enjoys all of
‘the same rights to counsel, to present evidence, and
to subpoena and cross-examine witnesses as afforded him at
the commitment hearing.'” (Resp't's Mot.
for Review Hearing (DE 55) at 2 (citing United States v.
Comstock, 627 F.3d 513, 516 (4th Cir. 2010)). At the
hearing, the court must determine, based on preponderance of
the evidence standard, whether the committed person remains
sexually dangerous and subject to ...