PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
           ______________

                 No. 10-4728
               ______________

      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
              ______________

  Submitted under Third Circuit LAR 34.1(a)
              March 27, 2015

BEFORE: GREENAWAY, JR., KRAUSE, and
      GREENBERG, Circuit Judges

       (Opinion Filed: October 5, 2015)
                       ______________

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
                     ______________

                 OPINION OF THE COURT
                     ______________

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,

(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, 

, 1141
      & n.9 (9th Cir. 1999); see also Phelps v. United
      States Fed. Gov’t, 

, 737 (8th Cir.
      1994), and/or in the District Court for the Eastern
      District of Pennsylvania, see Rumsfeld v. Padilla,
      

, 447[, 

, 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, 

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

, 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, 

, 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

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, 

, 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., 

, 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, 

, 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,

, 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.” 

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 

.

        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, 

,
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, 

, 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,

, 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, 

, 47, 

, 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.,

, 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 

, 118 S.Ct. at
1867 (citing Pac. R.R. of Mo. v. Mo. Pac. Ry. Co., 

, 522, 

, 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, 

, 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 

. 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 

, 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, 

, 314
(4th Cir. 1988) (en banc); 

; United
States v. Steil, 

, 808-09 (D. Minn. 1989). But
see United States v. Godinez-Ortiz, 

, 1032 (9th
Cir. 2009) (holding that district court in Southern District of




                               

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 

(stating
civilly committed individual not eligible for relief under §
2255); 

(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, 

, 447,

, 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, 

, 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 

.




                               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,

, 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., 

, 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, 

, 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, 

, 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,

, 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, 

, 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., 

, 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, 

, 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, 

, 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, 

, 366
(M.D. Pa. 1966), aff’d, 

(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, 

, 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, 

, 80 (1992); Addington v. Texas, 

, 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, 

, 11-12 (1979); Wolff v. McDonnell, 

, 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 

; 

.

       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 

; 

. 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, 

,
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, 

, 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., 

, 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 

.

       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