                       PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,            
             Petitioner-Appellant,
               v.                          No. 11-6886
GERALD WAYNE TIMMS,
            Respondent-Appellee.
                                     

UNITED STATES OF AMERICA,            
              Petitioner-Appellee,
               v.                          No. 11-6941
GERALD WAYNE TIMMS,
            Respondent-Appellant.
                                     
       Appeals from the United States District Court
   for the Eastern District of North Carolina, at Raleigh.
            Terrence W. Boyle, District Judge.
                    (5:08-hc-02156-BO)

                 Argued: October 28, 2011

                 Decided: January 9, 2012

 Before TRAXLER, Chief Judge, and MOTZ and AGEE,
                  Circuit Judges.
2                   UNITED STATES v. TIMMS
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Agee wrote the opinion, in which Chief Judge
Traxler and Judge Motz concurred.


                         COUNSEL

ARGUED: Ian James Samuel, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for the United
States. Kearns Davis, BROOKS, PIERCE, MCLENDON,
HUMPHREY & LEONARD, Greensboro, North Carolina,
for Gerald Wayne Timms. ON BRIEF: Tony West, Assistant
Attorney General, Mark B. Stern, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Thomas
G. Walker, United States Attorney, Raleigh, North Carolina,
for the United States. Eric M. David, BROOKS, PIERCE,
MCLENDON, HUMPHREY & LEONARD, Greensboro,
North Carolina, for Gerald Wayne Timms.


                          OPINION

AGEE, Circuit Judge:

   The Government appeals from the judgment of the District
Court for the Eastern District of North Carolina dismissing
the Government’s action to civilly commit Gerald Wayne
Timms as a "sexually dangerous person" under 18 U.S.C.
§ 4248 ("§ 4248" or "the statute"). The district court held that
the statute, as applied to Timms, violated the Due Process and
Equal Protection Clauses of the United States Constitution.
Timms cross-appeals, asserting additional grounds upon
which § 4248 should be found unconstitutional. For the rea-
sons set forth below, we reverse the district court’s judgment
on the grounds the Government raises, affirm as to the
grounds Timms raises, and remand for the district court to
                        UNITED STATES v. TIMMS                              3
determine whether Timms satisfies the criteria for commit-
ment as a "sexually dangerous person."

             I.   Factual and Procedural Background

   Timms’ case is among the first cases arising out of the civil
commitment system established by § 4248 as part of the
Adam Walsh Child Protection and Safety Act of 2006, ("the
Act"), Pub. L. No. 109-248 § 302, 120 Stat. 587, 620-22. The
background of Timms’ commitment proceeding, as well as
the context for the arguments made in this appeal, are inextri-
cably connected to the litigation of § 4248 cases in this Cir-
cuit thus far.

   Section 4248 authorizes the civil commitment of, inter alia,
individuals who are in the custody of the Bureau of Prisons
("BOP") and who are determined to be "sexually dangerous
person[s]." A "sexually dangerous person" is defined under
the Act as someone "who has engaged or attempted to engage
in sexually violent conduct or child molestation and who is
sexually dangerous to others." 18 U.S.C. § 4247(a)(5); 28
C.F.R. § 549.91. The inquiry is thus two-fold, requiring the
district court to make both retrospective and prospective find-
ings.1

   The commitment process begins when the Attorney Gen-
eral, the Director of the BOP, or their designee certifies an
individual as a "sexually dangerous person" in the district
  1
    The implementing regulations further define "sexually violent conduct"
and "child molestation." 28 C.F.R. §§ 549.92-93. A person is deemed
"sexually dangerous to others" if the individual "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." 18 U.S.C. § 4247(a)(6); see also 28 C.F.R.
§ 549.94 (defining "sexually dangerous to others"); 28 C.F.R. § 549.95
(setting guidelines for determining if an individual will have "serious diffi-
culty in refraining from sexually violent conduct or child molestation if
released").
4                      UNITED STATES v. TIMMS
court where that individual is in custody. The certification
automatically stays the prisoner’s release from BOP custody.
§ 4248(a). The district court is then required to "order a hear-
ing to determine whether the person is a sexually dangerous
person." Id. If "the court finds by clear and convincing evi-
dence that the person is a sexually dangerous person," the per-
son is committed to the custody of the Attorney General,
either for release to a state civil commitment system or to a
federal facility until such time as the person is determined no
longer to be sexually dangerous. § 4248(d)-(e).

   When the Act was first implemented, individuals were cer-
tified under § 4248(a) in various district courts around the
country, depending on the location of that person’s BOP place
of incarceration. Early in the process, however, the BOP
began transferring potential candidates for § 4248 civil com-
mitment to the Federal Correctional Institute in Butner, North
Carolina ("FCI-Butner") for an initial assessment, such that
§ 4248 civil commitment actions are now being reviewed
almost exclusively through that facility.2 As a result, nearly all
§ 4248 civil commitment actions nationwide are now filed
and adjudicated in the Eastern District of North Carolina, and
then appealed to this Court.3
    2
     The BOP apparently selected FCI-Butner as the facility for § 4248(a)
commitments based on an established sex offender treatment program for
BOP inmates, with existing staff and other resources for the development
of the § 4248 civil commitment treatment program. Toward that end, FCI-
Butner has established a Commitment and Treatment Program for Sexu-
ally Dangerous Persons, which oversees § 4248 commitments, from pre-
certification evaluations to post-commitment treatment and ongoing evalu-
ation.
   3
     In documentation provided to the Court at our request prior to oral
argument, the parties represented that the Government has certified
approximately 130 individuals as "sexually dangerous persons" under
§ 4248 since the statute’s enactment. (Docket Entry Nos. 53, 54, 55, 58,
59, and 60 (Parties’ responses to Court Order of Oct. 18, 2011 directing
the parties to prepare and file a chart containing certain information
related to the processing of § 4248 commitment actions).) Of those certifi-
                        UNITED STATES v. TIMMS                            5
   The first challenge brought before us regarding the consti-
tutionality of § 4248 was in United States v. Comstock, 551
F.3d 274 (4th Cir. 2009), rev’d, 130 S. Ct. 1949 (2010)
("Comstock I"). As we previously summarized,

     In Comstock, the [Government] certified five respon-
     dents in its custody as sexually dangerous under
     § 4248 and requested evidentiary hearings. The cases
     were assigned to Judge Earl Britt, Senior District
     Judge in the Eastern District of North Carolina, who
     appointed the federal public defender to represent
     the respondents. However, no evidentiary hearings
     were held. Instead, Judge Britt granted the respon-
     dents’ motions to dismiss as a matter of law, on the
     ground that § 4248 exceeded the scope of Congress’s
     authority under the United States Constitution to
     enact legislation and, in the alternative, on the
     ground that the statute facially violated respondents’
     due process rights. See United States v. Comstock,
     507 F. Supp. 2d 522, 526, 559 (E.D.N.C. 2007).

cations, 116 were filed in the Eastern District of North Carolina, all but
nine of which were filed prior to July 2011. (Docket Entry No. 54, part
4, Magistrate Judge Gates’ "Update on Hearing Status of § 4248 Cases"
Memorandum of Oct. 26, 2011, at p. 1.)
   It appears, then, that less than two dozen § 4248(a) certifications have
been filed outside the Eastern District of North Carolina. See, e.g., United
States v. Shields, 649 F.3d 78 (1st Cir. 2011) (appeal from the United
States District Court for the District of Massachusetts); United States v.
Carta, 592 F.3d 34 (1st Cir. 2010) (same); United States v. Volungus, 595
F.3d 1 (1st Cir. 2010) (same); United States v. Hernandez-Arenado, 571
F.3d 662 (7th Cir. 2009) (appeal from the United States District Court for
the Southern District of Illinois); United States v. Tom, 565 F.3d 497 (8th
Cir. 2009) (appeal from the United States District Court for the District of
Minnesota); United States v. Wetmore, 766 F. Supp. 2d 319 (D. Mass.
2011); United States v. Wilkinson, 646 F. Supp. 2d 194 (D. Mass 2009);
United States v. Hunt, 643 F. Supp. 2d 161 (D. Mass. 2009); United States
v. Abregana, 574 F. Supp. 2d 1123 (D. Haw. 2008); United States v.
Harnden, 2006 U.S. Dist. LEXIS 97341 (C.D. Cal. Dec. 28, 2006).
6                       UNITED STATES v. TIMMS
        However, Judge Britt stayed release of the Comstock
        respondents from custody pending an appeal from
        his decision. Id. at 560.

Timms v. Johns, 627 F.3d 525, 526-27 (4th Cir. 2010), cert.
denied, 131 S. Ct. 2938 (May 31, 2011) ("Timms I").

   On October 23, 2008, while Comstock I was pending
before this Court, the Government filed a certificate in the
District Court for the Eastern District of North Carolina, seek-
ing to commit Timms as a "sexually dangerous person" under
§ 4248. At the time, Timms was in BOP custody, serving a
100-month sentence for soliciting and receiving child pornog-
raphy by mail, in violation of 18 U.S.C. § 2252A(a)(2). He
was scheduled to be released from BOP custody on Novem-
ber 11, 2008, but upon the Government’s § 4248 certification,
Timms’ release was stayed.4 Timms’ commitment proceeding
was assigned to Judge W. Earl Britt, who, by order dated
October 28, 2008, appointed the federal public defender to
represent Timms and sua sponte placed Timms’ proceeding in
abeyance pending the outcome of the appeal in Comstock I.5
Neither Timms nor his appointed counsel objected to Judge
    4
   In addition to the conviction for which he was then incarcerated, the
Government’s certification noted two convictions in Florida state court
that were relevant to its decision to certify Timms: a second-degree mur-
der conviction for stabbing a woman to death while engaging in (initially)
consensual sex and a sexual battery conviction for raping a woman who
was friends with the murder victim seventeen days after the murder.
   The Government’s certification also relied on Timms’ "initial psycho-
logical diagnoses of pedophilia, sexual sadism, marijuana abuse, and anti-
social personality disorder, and initial risk assessments for sexual offense
recidivism[,] which ‘indicat[ed] that [Timms would] have serious diffi-
culty refraining from sexually violent conduct or child molestation if
released’ from custody." Timms I, 627 F.3d at 527 (second two alterations
in original).
   5
     Timms’ commitment was not unique in this regard, as it was the dis-
trict court’s standing practice to stay proceedings pending Comstock’s res-
olution.
                       UNITED STATES v. TIMMS                           7
Britt’s decision, or filed a motion to conduct the § 4248 com-
mitment hearing in this proceeding.

   However, within days of the Government filing the § 4248
certification,6 Timms filed a separate pro se habeas corpus
action pursuant to 28 U.S.C. § 2241 against the Warden at
FCI-Butner. Timms requested that § 4248 be declared uncon-
stitutional such that he would be entitled to a writ of habeas
corpus, or in the alternative, that his commitment hearing
occur, so that he could be released as scheduled from his
incarceration at FCI-Butner. Timms’ habeas action was
assigned to Judge Terrence W. Boyle.

   In January 2009, this Court affirmed the dismissal of the
§ 4248 certifications in Comstock I, holding that Congress
lacked constitutional authority to enact the statute. 551 F.3d
at 276. The United States Supreme Court subsequently
granted certiorari. During this time, the district court’s stay
remained in effect, thus holding Timms beyond the date of his
scheduled release from federal custody for the service of his
criminal sentence.

   While the Comstock I appeal was pending, Judge Boyle
conducted initial hearings in Timms’ habeas proceeding and,
inter alia, appointed private counsel to represent him. Timms’
newly-appointed counsel renewed a request that Timms be
immediately released on the basis of our holding in Comstock
I or, in the alternative, that the district court conduct an evi-
dentiary hearing on Timms’ sexual dangerousness under
§ 4248. Counsel for Timms also alleged § 4248 was unconsti-
tutional for additional reasons beyond those upon which our
holding in Comstock I was based. In March 2010, Judge
Boyle granted Timms’ petition for habeas corpus, holding that
  6
   Timms’ pro se habeas petition was filed October 26, 2008, just three
days after the Government’s certification in this commitment action and
two days prior to the district court’s order placing the commitment action
in abeyance.
8                   UNITED STATES v. TIMMS
§ 4248 was unconstitutional (both on its face and as applied
to Timms), and ordering his immediate release. Timms’
release was stayed pending the Government’s appeal to this
Court.

   In May 2010, the United States Supreme Court issued its
opinion in Comstock, reversing our decision that § 4248 was
unconstitutional, and holding that Congress properly enacted
the statute pursuant to the Necessary and Proper Clause of the
United States Constitution, Art. I, § 8, cl. 18. United States v.
Comstock, 130 S. Ct. 1949, 1954 (2010). The Supreme Court
remanded the case to this Court to consider the additional
grounds presented, but not decided, in Comstock I, and upon
which the district court in that case had held that § 4248 was
unconstitutional. Id. at 1955, 1965. This Court heard oral
argument in the remanded case in September 2010, in seria-
tim with the appeal of Timms’ habeas action.

   Our decisions in those cases were both filed on December
6, 2010. Timms I, 627 F.3d 525; United States v. Comstock,
627 F.3d 513 (4th Cir. 2010), cert. denied, 131 S. Ct. 3026
(June 20, 2011) ("Comstock II"). In Comstock II, we reversed
the district court’s judgment concerning the burden of proof
under § 4248. We held that the statute did not violate the Due
Process Clause by requiring a court to find by "clear and con-
vincing evidence" — rather than "proof beyond a reasonable
doubt" — that the individual "has engaged or attempted to
engage in sexual violence or child molestation" and is "sexu-
ally dangerous to others." 627 F.3d at 515-25; cf. § 4248(d),
4247(a)(5). In Timms I, we also reversed the district court’s
judgment, holding that habeas corpus relief was not appropri-
ate because Timms failed to exhaust his remedies in the
§ 4248 commitment proceeding prior to pursuing the writ.
627 F.3d at 530-33. Both cases were remanded to the district
court, with instructions for the court in Comstock II to pro-
ceed to the merits with the commitment actions and in Timms
I to dismiss the habeas petition without prejudice. 627 F.3d at
525; 627 F.3d at 533.
                       UNITED STATES v. TIMMS                            9
   As noted, the trial proceedings in the instant commitment
action had been held in abeyance since October 2008.7 In
August 2010, then-Chief Judge Louise W. Flanagan for the
District Court for the Eastern District of North Carolina
issued a standing order related to the processing of § 4248
commitment actions in that district. The order’s terms
included the following provision regarding motions for hear-
ings:

     Until such time as the final determination by an
     appellate court of "any claim that the statute or its
     application denies equal protection of the laws, pro-
     cedural or substantive due process, or any other
     rights guaranteed by the Constitution[,]" if an indi-
     vidual respondent would like to proceed with the liti-
     gation of the government’s petition for his
     commitment, counsel for the respondent shall inform
     the court of the respondent’s desire to proceed with
     a hearing by filing a motion for a hearing. Such
     motion shall be filed . . . as soon as practicable after
     the respondent informs his counsel of his desire to
     litigate the commitment petition.

Aug. 4, 2010 Standing Order of the Court, § 3(b) (citation
omitted).

   By the time of the Standing Order, Timms’ commitment
   7
     In April 2010, after Judge Boyle had granted Timms’ petition for
habeas corpus in that proceeding, but before the appeal had been consid-
ered, the Government moved for a probable cause hearing in Timms’ com-
mitment action. Judge Britt denied the motion, observing "the government
has cited to no cases showing the court’s authority to hold such a hearing
in light of the disposition of the habeas petition." (Timms, Case No. 5:08-
hc-02156-BO, Docket Entry No. 8 (motion) and 11 (order denying
motion), Apr. 6-7, 2010.) There were also occasional motions for release
or to continue the stay, as well as motions to withdraw as Timms’ counsel,
but none of these motions altered the substantive status quo of abeyance
in the commitment action.
10                  UNITED STATES v. TIMMS
action had been transferred from Judge Britt to Judge Boyle.
It appears from the record that Judge Boyle does not follow
the standing order’s provisions, although it is not clear how
that policy was made known. Regardless, Timms did not
move for a hearing in this proceeding following the issuance
of the standing order.

   In January 2011, in light of this Court’s decision in his
habeas action, Timms filed a pro se motion to dismiss this
case (the pending commitment action) on various constitu-
tional grounds, both facially and as applied to him. Judge
Boyle subsequently denied the motion because Timms was
represented by counsel. On January 14, 2011, Judge Boyle
issued a text order regarding all pending § 4248 commitment
actions pending before him and scheduled a status hearing in
all of the cases for the following week. Shortly thereafter,
Timms’ counsel from his habeas action notified the court that
it would be representing him in the commitment action and
the public defender’s office withdrew from representing
Timms. In early February 2011, Timms by counsel, moved
for release from custody on a variety of constitutional
grounds, or in the alternative, for the court to hold a hearing
on the merits as to whether Timms could be civilly committed
as a "sexually dangerous person" under § 4248.

   Judge Boyle granted Timms’ motion to hold the commit-
ment hearing, but deferred consideration of the constitutional
challenges raised in Timms’ motion to dismiss. The parties
then coordinated scheduling of the commitment hearing, allot-
ting time to prepare the requisite psychological evaluations
that would form the basis of the expert testimony needed to
determine the issue of Timms’ sexual dangerousness.

  Timms’ commitment hearing was held May 25-27, 2011, at
which time the parties presented evidence as to whether
Timms satisfied the § 4248 criteria for civil commitment as a
"sexually dangerous person." The district court’s June 30,
2011 final order did not, however, address the merits of
                    UNITED STATES v. TIMMS                   11
whether Timms was a "sexually dangerous person." Instead,
the court analyzed the constitutional challenges in the motion
to dismiss, granting the motion in part and denying it in part,
and ordering Timms’ immediate release to the custody and
supervision of the United States Probation Office to serve the
term of supervised release under his existing criminal sen-
tence.

   The district court rejected Timms’ "broad strand of argu-
ment" "that § 4248, notwithstanding its civil label, creates a
criminal proceeding." (J.A. 22.) Relying on Comstock II, the
district court also rejected Timms’ contention that § 4248 is
unconstitutional because it requires proof by "clear and con-
vincing evidence" (rather than "beyond a reasonable doubt")
of an individual’s predicate bad acts. However, as discussed
more fully below, the district court agreed with Timms that,
as applied to him, § 4248 deprived him of equal protection of
the law under the Fourteenth and Fifth Amendments and of
due process under the Fifth Amendment. The court "de-
cline[d] [Timms’] invitation to facially invalidate" § 4248 on
those bases, finding that he failed to satisfy the "heavy bur-
den" set forth in United States v. Salerno, 481 U.S. 739, 745
(1987). (J.A. 47.) The district court concluded that the consti-
tutional violations "separately and independently warrant[ed]
dismissal" and ordered Timms’ immediate release. (J.A. 48.)

   The Government opposed Timms’ immediate release and
moved in the district court to continue the stay pending this
appeal. At the same time, the Government noted a timely
appeal and moved for an emergency stay pending appeal in
this Court. The district court denied the motion for stay, but
we granted the motion pending before us and ordered expe-
dited briefing. Timms then noted a timely cross-appeal. We
heard oral argument in this case on October 28, 2011 in seria-
tim with the appeal of another § 4248 civil commitment case,
United States v. Hall, No. 11-7102, in which Judge Boyle also
dismissed the Government’s certification relying on the same
constitutional grounds relied on in Timms’ case, but making
12                     UNITED STATES v. TIMMS
a merits determination that Hall did not meet § 4248’s defini-
tion of a "sexually dangerous person."

  We have jurisdiction over the pending appeal under 28
U.S.C. § 1291.

                                   II.

   The Government raises two issues on appeal: whether the
district court erred in finding that § 4248 deprives Timms and
other similarly situated individuals in BOP custody of equal
protection; and whether it erred in holding that Timms was
entitled to release because the delay between Timms’ § 4248
certification and the commitment hearing violated his right to
due process of law. Timms cross-appeals, contending the dis-
trict court erred in determining § 4248 was a civil, rather than
criminal, statute, and also erred in refusing to find § 4248
facially unconstitutional.8

  We review the district court’s ruling on a constitutional
challenge to a federal statute de novo. United States v.
Buculei, 262 F.3d 322, 327 (4th Cir. 2001).

                        A.   Equal Protection

     In holding that § 4248 deprived Timms, and others simi-
   8
     Timms also raises two arguments he acknowledges are foreclosed by
this Court’s precedent, but which he nonetheless seeks to preserve. First,
he contends that § 4248 violates the Due Process Clause because it only
requires the necessary past conduct to be supported by "clear and convinc-
ing evidence" rather than by "proof beyond a reasonable doubt." In Com-
stock II, we held that § 4248’s standard of "clear and convincing
evidence" satisfied due process. 627 F.3d at 524. Second, Timms asserts
the Government cannot proceed with a § 4248 certification because he
was sentenced to a period of supervised release. We rejected an identical
argument in United States v. Broncheau, 645 F.3d 676 (4th Cir. 2011).
Based on our clear and binding precedent, we do not consider these issues
further.
                    UNITED STATES v. TIMMS                    13
larly situated, of equal protection under the Fourteenth and
Fifth Amendments, the district court relied on Baxstrom v.
Herold, 383 U.S. 107 (1966), and related cases. In its opinion,
the district court stated:

    [s]ince the Government cannot provide less protec-
    tion during civil commitment for prisoners than for
    nonprisoners, it follows that the government cannot
    commit prisoners while categorically shielding non-
    prisoners from civil commitment altogether. It is ille-
    gitimate, arbitrary, and capricious for a state to
    subject only prisoners to civil commitment, leaving
    the rest of the population untouched. Yet that is
    exactly what § 4248 instructs the Executive to do.

(J.A. 30.)

   The district court rejected the Government’s argument that
the limitation to persons in BOP custody was necessary
because Congress lacked a general police power, determining
that this argument would "wrongly" allow Congress’ "enu-
merated federal powers to bypass the Constitution’s equal
protection guarantee." (J.A. 31.) And it concluded that "[i]f
the federal government does not have the power to equally
apply its civil commitment scheme to everyone, then it should
not civilly commit anyone." (J.A. 31.) Lastly, the district
court held that subjecting individuals in BOP custody to the
possibility of civil commitment under § 4248 "bears no ratio-
nal relationship to the purpose of shielding the public from the
dangers of sexual predation" because sexually dangerous indi-
viduals exist everywhere. (J.A. 31.)

   On appeal, the Government asserts the district court erred
in concluding that § 4248 violates the Equal Protection Clause
because the statute rationally distinguishes between those
within Congress’ power to regulate and those outside of it.
The Government further contends that the district court’s
analysis turns the Supreme Court’s decision in Comstock "on
14                  UNITED STATES v. TIMMS
its head" because that case affirmed Congress’ limited, but
appropriately-exercised, constitutional authority to make civil
commitments of certain classes of persons, specifically, those
in its custody for a federal criminal offense. (Opening Br. 10.)
The Government distinguishes Baxstrom based on the type of
equal protection analysis necessary there — whether individu-
als subject to a state civil commitment scheme must be treated
similarly once subject to it — and the analysis here, whether
Congress rationally decided which individuals would be sub-
ject to a federal civil commitment scheme.

   In reaching its equal protection decision, the district court
held "that the level of scrutiny is irrelevant in this case as
§ 4248 fails to pass even rational basis review." (J.A. 29.) The
district court nonetheless noted that it was "swayed . . . by
extensive precedent holding that equal protection challenges
of civil commitment statutes receive only rational basis
review" and cited a number of circuit court of appeals deci-
sions to that effect. (J.A. 28.) On appeal, the Government con-
tends rational basis review is the appropriate level of judicial
scrutiny, while Timms argues for a higher degree of review.

   Our inquiry has two parts in order to resolve Timms’ equal
protection claim. First, we must determine the appropriate
standard of review to apply. And, second, we must determine
whether the district court erred in concluding § 4248 does not
satisfy that standard.

                   1.   Standard of Review

   The Supreme Court has not expressly identified the proper
level of scrutiny to apply when reviewing constitutional chal-
lenges to civil commitment statutes. The only other circuit
court of appeals to consider whether § 4248 satisfied the
demands of the Equal Protection Clause applied rational basis
review. United States v. Carta, 592 F.3d 34, 44 (1st Cir.
2010) (applying rational basis review without further analy-
sis); see also United States v. Shields, 522 F. Supp. 2d 317,
                       UNITED STATES v. TIMMS                          15
340-41 (D. Mass. 2007) (determining rational basis review
should apply to § 4248 equal protection argument given the
lack of clear Supreme Court authority requiring heightened
scrutiny).

   As a general principle of Equal Protection Clause jurispru-
dence, "legislation is presumed to be valid and will be sus-
tained if the classification drawn by the statute is rationally
related to a legitimate state interest." City of Cleburne v. Cle-
burne Living Ctr., Inc., 473 U.S. 432, 440 (1985). However,
higher levels of scrutiny will be applied if a statute implicates
a fundamental right or suspect class. Id. at 439-41. No
Supreme Court case has applied a higher level of scrutiny
than rational basis review in the context of civil commitment.

   Timms primarily relies on two Supreme Court cases as sup-
port for applying heightened scrutiny.9 The Supreme Court’s
plurality opinion in Foucha v. Louisiana, 504 U.S. 71 (1992)
(plurality opinion), suggests that involuntary civil commit-
ment would conflict with the fundamental right of "freedom
from physical restraint." Id. at 86. More particularly, the
Supreme Court’s decision in Addington v. Texas, 441 U.S.
418 (1979), also recognized that civil commitment "consti-
tutes a significant deprivation of liberty." Id. at 425. Timms
extrapolates from these statements on the nature of the right
at issue in civil commitment proceedings that the Supreme
Court would apply heightened scrutiny in making an equal
protection analysis of a civil commitment statute.

   We do not believe that this conclusion follows because,
despite the opportunity to do so, the Supreme Court has never
expressly applied anything other than rational basis review to
the question of whether a civil commitment scheme satisfies
equal protection. For example, neither of the cases relied upon
by Timms, Foucha and Addington, addressed the equal pro-
  9
   Timms alternatively argues that strict scrutiny or, in the alternative,
some intermediary level of scrutiny beyond rational basis should apply.
16                  UNITED STATES v. TIMMS
tection standard of review. The language in Foucha, on which
Timms relies, is not contained in the opinion of the Court, but
in a plurality opinion as to the judgment on that issue, cf. 504
U.S. at 72, 85-86. In Addington, the language Timms cites is
in the context of the due process analysis, not equal protec-
tion. Cf. 441 U.S. at 425. Furthermore, in Baxstrom, the
Supreme Court concluded that a state’s civil commitment
scheme violated the Equal Protection Clause, but in so doing,
it observed there was no "semblance of rationality" for the
statute’s distinctions, thus appearing to apply rational basis
review. Id. at 115.

   Because the Supreme Court has never required greater than
rational basis review, that rational basis review is the
generally-applicable standard, and in light of the language in
Baxstrom, we hold that rational basis review is the appropriate
level of judiciary scrutiny when examining whether § 4248
violates the Equal Protection Clause. In so doing, we apply
the same standard the First Circuit Court of Appeals used in
United States v. Carta, 592 F.3d 34, 44 (1st Cir. 2010), when
examining this precise issue. In addition, we reach the same
conclusion of several of our sister circuit courts of appeals
that have addressed this issue in the context of other civil
commitment statutes. See, e.g., Varner v. Monohan, 460 F.3d
861, 865 (7th Cir. 2006) (holding the difference between a
person who has been convicted of sex offenses and one who
has not implicates "neither fundamental rights nor suspect
classes"); United States v. Weed, 389 F.3d 1060, 1071 (10th
Cir. 2004) (holding that insanity acquitees are not members of
a suspect class, nor is a fundamental right at stake in their
civil commitment). But see Ernst J. v. Stone, 452 F.3d 186,
200-01 & 200 n.10 (2d Cir. 2006), and Francis S. v. Stone,
221 F.3d 100, 111-12 (2d Cir. 2000) (acknowledging that the
Supreme Court has never expressly used strict scrutiny, but
relying on Addington and other Supreme Court cases to con-
clude "[s]ome form of intermediate level scrutiny appears to
have been used" and therefore adopting a heightened interme-
                    UNITED STATES v. TIMMS                   17
diate standard of review for civil constitutional challenges to
civil commitment schemes).

   Under rational basis review, a classification enjoys a strong
presumption of validity and is constitutional as long as "there
is a rational relationship between the disparity of treatment
and some legitimate governmental purpose." Heller v. Doe,
509 U.S. 312, 320 (1993). Congress, in creating categories of
treatment, "need not actually articulate at any time the pur-
pose or rationale supporting its classification." Id. (quotation
marks and citation omitted). "Instead, a classification must be
upheld against equal protection challenge if there is any rea-
sonably conceivable state of facts that could provide a rational
basis for the classification." Id. (quotation marks and citation
omitted). "[T]he burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might
support it, whether or not the basis has a foundation in the
record." Id. at 320-21 (quotation marks and citation omitted).
Moreover, "courts are compelled under rational-basis review
to accept a legislature’s generalizations even when there is an
imperfect fit between means and ends. A classification does
not fail rational-basis review because it is not made with
mathematical nicety or because in practice it results in some
inequality." Id. at 321 (quotation marks and citation omitted).

   With this standard in mind, we turn to the merits of the
Government’s argument that the district court erred in con-
cluding § 4248 deprives Timms and other similarly-situated
individuals in BOP custody of equal protection.

                          2.   Merits

  The Equal Protection Clause "commands that no State shall
‘deny to any person within its jurisdiction the equal protection
of the laws,’ which is essentially a direction that all persons
similarly situated should be treated alike." City of Cleburne,
437 U.S. at 439. But at the most basic level, individuals in
BOP custody are not similarly situated to individuals who are
18                   UNITED STATES v. TIMMS
not in BOP custody. For this reason, we hold that the district
court erred in concluding § 4248 violated the Equal Protection
Clause as applied to Timms and others similarly situated.

   The district court placed too much weight on superficial
similarities between the inquiry in this case and the Supreme
Court’s decision in Baxstrom. There, the Supreme Court held
that a state prisoner "was denied equal protection of the laws
by the [state’s] statutory procedure under which a person may
be civilly committed at the expiration of his penal sentence
without the jury review available to all other persons civilly
committed in" the state and "without a judicial determination
that he is dangerously mentally ill" as required to civilly com-
mit all non-prisoners. 383 U.S. at 110. The Supreme Court
found "no conceivable basis for distinguishing the commit-
ment of a person who is nearing the end of a penal term from
all other civil commitments" for purposes of whether a person
should be afforded judicial review before a jury. Id. at 111-12.
It also concluded that "[w]here the State has provided for a
judicial proceeding to determine the dangerous propensities of
all others civilly committed . . . , it may not deny this right
to a person in Baxstrom’s position solely on the ground that
he was nearing the expiration of a prison term." Id. at 114.

   The Supreme Court’s Baxstrom decision was not a broad
assertion that prisoners and non-prisoners must always be
treated identically in order to satisfy the strictures of the Equal
Protection Clause. Rather, the Court’s analysis focused on the
particular classifications being made and the failure to find a
rational basis between that classification and the different
treatment set forth in the statute. Because the state in Baxs-
trom subjected any allegedly mentally ill individuals to civil
commitment, it had to articulate a rational basis for affording
prisoners and non-prisoners different levels of rights during
the commitment proceedings. The Supreme Court concluded
it failed to do so and the state statute at issue therefore
deprived prisoners of equal protection. A similarly statute-
specific analysis must take place here.
                        UNITED STATES v. TIMMS                           19
   In contrast to the statute in Baxstrom, which provided for
civil commitment of prisoners and non-prisoners alike (with
different procedural protections for the two groups), § 4248
only authorizes the civil commitment of certain prisoners, pri-
marily those in BOP custody. That limitation is rationally
related to the fact that Congress, unlike the several states,
lacks a general police power.10 As such, it is not a "capri-
cious" classification based on the status of incarceration, but
rather a reasonable recognition that individuals in BOP cus-
tody are one of the few groups of persons falling within Con-
gress’ limited police power. Cf. id. at 115; see also Carta, 592
F.3d at 44 ("A state, unlike Congress, has a general police
power, whereas the federal government’s interest and respon-
sibility here stem from the fact that it already has custody of
the prisoner.").

   Quite different from the issue in Baxstrom, then, the rele-
vant inquiry in this case is whether Congress had a rational
basis for subjecting sexually dangerous persons within BOP
custody to civil commitment when individuals not within
BOP custody are not subject to such commitment. Because
the scope of the federal government’s authority as to civil
commitment differs so significantly from a state’s authority,
we conclude that there is a rational basis for the distinction
Congress drew.

   Nor are we persuaded by the district court’s assertion that
   10
      Although the Supreme Court’s analysis in Comstock does not under-
take the dispositive analysis here, it did set out the reasons why Congress
limited the statute to certain categories of persons. For example, the Court
quoted the Solicitor General’s admission that "the Federal Government
would not have . . . the power to commit a person who . . . has been
released from prison and whose period of supervised release is also com-
pleted." 130 S. Ct. at 1965. From this, the Court concluded that "far from
[being] a ‘general police power,’ § 4248 is a reasonably adapted and nar-
rowly tailored means of pursuing the Government’s legitimate interest as
a federal custodian in the responsible administration of its prison system."
Id.
20                      UNITED STATES v. TIMMS
the choice Congress made, to civilly commit individuals in
BOP custody and not to extend § 4248’s scope to all of the
limited classes of individuals who could fall within its federal
police powers, renders the statute unconstitutional.11 Contrary
to the district court’s conclusion, the question in Baxstrom as
to the equal treatment of individuals once subject to civil
commitment is a different inquiry than whether to subject a
category of individuals to civil commitment in the first
instance. As the Supreme Court has long recognized, Con-
gress may legislate incrementally. Williamson v. Lee Optical
of Okla., 348 U.S. 483, 489 (1955) ("[R]eform may take one
step at a time, addressing itself to the phase of the problem
which seems most acute to the legislative mind.").

   Consequently, we hold the district court erred in conclud-
ing that there was no rational basis for distinguishing individ-
uals in BOP custody from any other class of persons for
§ 4248 purposes. The district court cited to no authority, nor
do we find any, to support its sweeping assertion that if "the
federal government does not have the power to equally apply
  11
     The district court pointed to "a corresponding group of unimprisoned
persons subject to Congress’ police power: those within the maritime and
territorial jurisdiction of the United States" and noted that Congress "ha[d]
made no attempt to extend its civil commitment powers to these jurisdic-
tions even though they inevitably contain sexually dangerous persons."
(J.A. 31.) It does not follow from those two premises that Congress there-
fore lacked a rational reason for limiting § 4248 to "sexually dangerous
persons" in BOP custody. As the Supreme Court recognized in Comstock,
Congress enacted § 4248 in order to "act as a responsible federal custo-
dian" of its prisoners by "protect[ing] nearby (and other) communities
from the danger federal prisoners may pose." 130 S. Ct. at 1961; see also
id. at 1956-65. And as an extension of Congress’ police power, it "could
have reasonably concluded that federal inmates who suffer from a mental
illness that causes them to ‘have serious difficulty in refraining from [child
molestation or] sexually violent conduct,’ would pose an especially high
danger to the public if released." Id. at 1961. It follows in turn that it was
rational for Congress to conclude that there was a greater need to protect
communities from federal prisoners than from individuals who were sim-
ply within the maritime and territorial jurisdiction of the United States.
                        UNITED STATES v. TIMMS                             21
its civil commitment scheme to everyone, then it should not
civilly commit anyone." (J.A. 31.) The Equal Protection
Clause does not demand so much. As the Supreme Court rec-
ognized in Baxstrom, "[e]qual protection does not require that
all persons be dealt with identically, but it does require that
a distinction made have some relevance to the purpose for
which the classification is made." 383 U.S. at 111.

   Here, Congress rationally limited § 4248’s scope to sexu-
ally dangerous persons within BOP custody based on Con-
gress’ limited police power and the federal interest in
protecting the public from reasonably foreseeable harm from
such persons. Cf. Comstock, 130 S. Ct. at 1961. Accordingly,
the district court erred in holding that § 4248 deprived Timms
and other similarly-situated individuals in BOP custody of
equal protection of the laws.12

                            B.    Due Process

   The Government next challenges the district court’s second
basis for dismissing Timms’ § 4248 commitment action—its
conclusion that § 4248’s "failure to require a speedy judicial
hearing renders that statute unconstitutional as to" Timms.
(J.A. 34.) Using the test developed in Mathews v. Eldridge,
424 U.S. 319, 334-35 (1976), the district court determined
"what process [was] due" Timms in the commitment action.
(J.A. 36 (quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)).) The district court concluded that while some period
of post-incarceration deprivation of liberty in § 4248 proceed-
  12
     Because we hold that the district court erred in determining that
§ 4248 violated the Equal Protection Clause as applied to Timms and
similarly-situated individuals, Timms’ argument on cross-appeal that the
district court should have found § 4248 facially invalid on this basis also
fails a fortiori. See Urofsky v. Gilmore, 216 F.3d 401, 427 n.1 (4th Cir.
2000) ("To prevail on their facial challenge, plaintiffs must establish that
no set of circumstances exists under which the Act would be valid. By
finding the statute valid as applied to these plaintiffs, the facial challenge
fails as well.") (internal quotation marks and citation omitted).
22                 UNITED STATES v. TIMMS
ings would be consistent with due process, the period in
Timms’ case between when he would have been released at
the end of his term of incarceration and the § 4248 commit-
ment hearing (nearly thirty-one months) was too long irre-
spective of the cause or circumstances.

   The court held the Government responsible for the "grim
delay" in the proceedings against Timms by "delivering [him]
into a legal setting where a timely resolution of his case was
unlikely" due to ongoing constitutional challenges to § 4248,
"waiting until the last moments of [Timms’] criminal sentence
to initiate [the] action," and seeking commitment under
§ 4248 rather than pursuing treatment or commitment under
other statutory provisions. (J.A. 45.) Also factoring into the
court’s conclusion was Timms’ "diligent" pursuit of his rights
throughout his period of confinement through the habeas
action. (J.A. 44.) For these reasons, the district court found
"that the Government has unconstitutionally deprived
[Timms] of his due process rights under the Fifth Amendment
of the United States Constitution" and "should have brought
[Timms] before a judicial officer for a final civil commitment
hearing within a reasonable time after his civil confinement
began." (J.A. 47.)

   The Government asserts the district court’s analysis
improperly attributed the delay in this case to the Govern-
ment, and that dismissal of the commitment action was the
wrong remedy in the event of any due process violation.
Recounting the procedural history of Timms’ commitment
action, the Government observes that the case was properly,
and pursuant to the district court’s sua sponte initiative,
placed in abeyance while the constitutional challenges to
§ 4248 were resolved. And it notes that Timms did not request
a hearing in this case (the commitment proceeding) until Feb-
ruary 2011. For these reasons, the Government submits that
any delay was not attributable to it and thus did not violate
Timms’ due process rights.
                    UNITED STATES v. TIMMS                    23
   Having reviewed the record and the extant case law, we
conclude that while the delay between the end of Timms’
period of incarceration and his § 4248 commitment hearing is
troubling, it does not rise to the level of a due process viola-
tion given the specific circumstances of this case. A conflu-
ence of reasons led to the delay, and the district court erred
in attributing the delay to the Government and consequently
finding a due process violation.

   The civil commitment process clearly impacts an individu-
al’s due process rights: "Because an adverse outcome in a
commitment hearing results in a massive curtailment of a per-
son’s liberty," whether the respondent is already a prisoner or
not, the Supreme Court has held that "due process . . . affords
respondents in [civil commitment] proceedings several proce-
dural protections." United States v. Baker, 45 F.3d 837, 843
(4th Cir. 1995) (internal citations omitted) (discussing due
process in the context of § 4246 civil commitment); see also
Addington, 441 U.S. at 425 ("[The Supreme] Court repeatedly
has recognized that civil commitment for any purpose consti-
tutes a significant deprivation of liberty that requires due pro-
cess protection.").

   "Once it is determined that due process applies, the ques-
tion remains what process is due." Morrissey, 408 U.S. at 481.
Because "[t]he fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a mean-
ingful manner," Mathews, 424 U.S. at 334 (citations omitted),
we must determine whether Timms received adequate due
process.

   In Mathews, the Supreme Court set forth the salient factors
to balance when determining whether the procedures set forth
in a statute provide adequate protection against erroneous or
unnecessary deprivation of an individual’s due process rights.
We begin with those Mathews factors:

    [F]irst, the private interest that will be affected by
    the official action; second, the risk of an erroneous
24                   UNITED STATES v. TIMMS
     deprivation of such interest through the procedures
     used, and the probable value, if any, of additional or
     substitute procedural safeguards; and finally, the
     Government’s interest, including the function
     involved and the fiscal and administrative burdens
     that the additional or substitute procedural require-
     ments would entail.

Id. at 335. As we previously recognized, the Supreme Court
has

     slightly reformulated these factors for use in assess-
     ing the permissibility of post-deprivation process
     delay:

         In determining how long a delay is justified
         in affording a post-suspension hearing and
         decision, it is appropriate to examine the
         importance of the private interest and the
         harm to this interest occasioned by delay;
         the justification offered by the Government
         for delay and its relation to the underlying
         governmental interest; and the likelihood
         that the interim decision may have been
         mistaken.

     [FDIC v. Mallen, 486 U.S. 230, 242 (1988).] Pre-
     sumably, this refinement was undertaken out of rec-
     ognition of the awkwardness of a literal application
     of the Mathews factors in this context. Where the
     question is not whether there will be post-
     deprivation review, but the timeliness of such
     review, it is not meaningful to inquire, as it is in the
     typical procedural due process context, whether the
     procedure sought—sooner review—would reduce
     the likelihood of an erroneous deprivation. The
     deprivation has already occurred, it is understood
     that there will be judicial review, and the depriva-
                     UNITED STATES v. TIMMS                     25
    tion, even if in error, cannot be "undone" by sooner
    judicial review. . . .

Jordan by Jordan v. Jackson, 15 F.3d 333, 345 (4th Cir.
1994). This framework "evaluate[s] the sufficiency of particu-
lar procedures," while also avoiding the establishment of rigid
rules due to the recognition that "the requirements of due pro-
cess are ‘flexible and cal[l] for such procedural protections as
the particular situation demands." Wilkinson v. Austin, 545
U.S. 209, 224 (2005) (quoting Morrissey, 408 U.S. at 481,
and citing Mathews, 424 U.S. at 335). We apply the recali-
brated Mathews analysis from Mallen here to resolve the issue
before us.

   Without question, Timms possesses a substantial "private
interest" affected by certification under § 4248, i.e., his inter-
est in liberty and freedom from physical restraint. However,
the statute contemplates that there may be some period of
detention between when a BOP inmate would normally have
been released and the § 4248 commitment hearing because it
states that certification "shall stay the release of the person
pending completion of procedures contained in this section,"
§ 4248(a). The statute also places no express outer limit on
how long that stay may remain in force or when the court
must conduct the commitment hearing. During that period of
time, however short or long it may be, an individual’s liberty
is restrained; thus, the statute implicates a substantial interest.
See Goetz v. Crosson, 41 F.3d 800, 803 (2d Cir. 1994) ("As
to the first [Mathews] factor, the patient has a liberty interest
implicated by the procedures used [during the civil commit-
ment proceeding]. Involuntary commitment to a psychiatric
facility is obviously a significant restriction on an individual’s
liberty.") (internal citations omitted). The private liberty inter-
est factor clearly weighs in Timms’ favor.

   The second Mathews factor, "the risk of erroneous depriva-
tion," was refined in Mallen to be "the likelihood that the
interim decision may have been mistaken." Jordan, 15 F.3d
26                   UNITED STATES v. TIMMS
at 345. That factor also weighs in Timms’ favor. Section 4248
permits certification upon an order signed by one individual,
the Attorney General, the Director of the BOP, or their desig-
nee. § 4248(a). No specific steps are required prior to certify-
ing someone, other than that signatory’s determination that
the person meets the criteria for being "sexually dangerous"
under § 4247(a)(5). There is no pre-certification hearing or
other initial adversarial review. Indeed, the risk of improper
certification is apparent from the parties’ representation that
of the approximately 130 individuals certified under § 4248,
the Government subsequently dismissed almost two dozen
certifications because it subsequently determined the individ-
ual did not satisfy the criteria. We note, however, that this risk
will likely be mitigated in the future given the Government’s
concession at oral argument that it will not, in the ordinary
course, oppose initial requests for "probable cause" hearings.
See, e.g., United States v. Shields, 522 F. Supp. 2d 317, 336
(D. Mass. 2007) ("The government concedes that, to avoid
constitutional doubts, this Court has the authority to interpret
[§ 4248] to require a probable cause hearing within a speci-
fied period of time."); see also Kansas v. Hendricks, 521 U.S.
346, 352 (1997) (noting that, under the Kansas Sexually Vio-
lent Predator Act, a court had to make a preliminary determi-
nation about whether "probable cause" existed that the person
was a "sexually violent predator").

   It is on the last inquiry, the Government’s interest and the
"justification offered by the Government for delay," that
Timms’ challenge ultimately fails. Cf. Mallen, 486 U.S. at
242. Significantly, due process "is not a technical conception
with a fixed content unrelated to time, places and circum-
stances," it is "flexible and calls for such procedural protec-
tions as the particular situation demands." Mathews, 424 U.S.
at 334 (quotations marks and citations omitted). The chronol-
ogy of events leading up to Timms’ § 4248 hearing reflects
"the justification offered by the Government for delay" satis-
fies the requirements of due process in this case.
                        UNITED STATES v. TIMMS                           27
   The Government certified Timms on October 23, 2008,
representing at that time that Timms is a "sexually dangerous
person," and requesting the district court "to hold a hearing to
determine whether" Timms could be committed under § 4248.
See § 4248(a). For at least the initial 19 days after certifica-
tion, Timms would have been held in BOP custody in any
event to complete his criminal sentence of incarceration. Con-
sequently, any procedural due process concern arose no ear-
lier than November 11, 2008, the day on which Timms would
have likely been released from incarceration absent the
§ 4248 certification.

   However, on October 28, 2008, the district court — sua
sponte — placed Timms’ commitment action in abeyance
pending Comstock. Timms, significantly, never objected to
the abeyance in this proceeding.13 In fact, his duly appointed
counsel consented to it. We do not mean to suggest that
Timms was not diligent in seeking judicial review at all, as he
clearly pursued a separate track for relief in his habeas peti-
tion. However, he never alerted the district court in the perti-
nent forum, this commitment action, that he objected to its
decision to place his commitment action in abeyance. The fact
remains that Timms’ commitment action remained in abey-
ance for approximately 26 months without Timms ever
requesting a hearing or asking the district court to reconsider
its decision to place his case in abeyance. This was so even
when it became clear that the abeyance would be lengthy and
after the district court issued the standing order stating that
individual respondents who wished to proceed with their com-
mitment hearings, despite the ongoing appellate review of the
constitutionality of the statute, could move for such a hearing
to take place in their commitment actions.
  13
    Indeed, even though he filed a writ of habeas corpus and repeatedly
requested a commitment hearing in conjunction with that proceeding,
because he filed the writ prior to the district court placing the commitment
action in abeyance, even that proceeding cannot fairly be considered an
"objection" to what the court did in this action.
28                     UNITED STATES v. TIMMS
   Consequently, the Government simply cannot be held
responsible for the time period during which Timms’ case
remained in abeyance throughout the lengthy appellate pro-
ceedings in Comstock. This is so particularly in light of the
apparent and actual acquiescence of Timms’ court-appointed
counsel in the commitment action to the continued abeyance.
Nor can the Government be faulted for agreeing to the abey-
ance in light of the heavy cost of pursuing hearings on the
merits when § 4248 proceedings remained under a cloud of
constitutional uncertainty. There is simply no basis for the
validity of the argument that the Government should have, at
its own initiative, pressed for a commitment hearing under
these circumstances.

   The district court thus improperly held the Government
responsible for "delivering [Timms] into a legal setting"
where there would be substantial delays by certifying him
under § 4248. (J.A. 45.) The district court cited no authority,
nor can we find any, for requiring the Government to avoid
actions it is lawfully permitted to take simply because the pro-
cess may stall later due to the actions of others. As long as
appellate review of the facial constitutionality of § 4248
remained ongoing, the Government was within its authority to
continue certifying individuals pursuant to the statute. Simi-
larly, just because the Government may have had additional
avenues for certifying some individuals under other federal
statutes does not mean that it was prohibited from certifying
individuals under § 4248 until the constitutionality of the stat-
ute was resolved.14
  14
    Timms and the district court both point to the timing of the Govern-
ment’s certification in proximity to Timms’ anticipated release from BOP
incarceration as a contributing factor to the delay in Timms receiving a
hearing. While it is true that the Government waited until just under three
weeks before Timms’ expected release to certify him, an earlier certifica-
tion would have made no difference in this particular case. The delay in
holding his § 4248 hearing occurred as a direct result of the relative new-
ness of § 4248 and the ongoing judicial review of the statute’s constitu-
                        UNITED STATES v. TIMMS                            29
   Furthermore, we find no due process violation arising from
the period between the end of the appellate proceedings in
Comstock in the summer of 2010 and Timms’ evidentiary
hearing on May 25, 2011. First, Timms did not move for a
hearing in the commitment action until February 8, 2011.15
After Timms finally did request a hearing in the proper forum,
due process required that he receive a hearing within a reason-
able period of time. Timms received a hearing less than four
months after his request (a February 8 request and May 25
hearing). Under the specific circumstances presented in this
case, this delay did not constitute a due process violation.16 In
the wake of the appellate rulings upholding the constitutional-
ity of § 4248, the district court made reasonable efforts to
schedule hearings in the numerous pending § 4248 cases and

tionality. An earlier certification in Timms’ case would not have led to an
earlier resolution of those issues in Comstock.
   In spite of the fact that this argument lacks force in Timms’ particular
circumstance, we note that it may have greater traction in a future case.
According to the parties’ representations, § 4248 certifications continue to,
in particular circumstances, take place mere days before an individual’s
expected release date from criminal incarceration. Now that § 4248’s con-
stitutionality has been resolved and the backlog of commitment hearings
are working their way through the judicial system, the Government must
strive to certify individuals in sufficient time to minimize the delay
between an anticipated release date and the § 4248 hearing. And although
this is not such a case, it may be that a substantial and unjustified delay
between those periods could be appropriately attributed to the Government
such that it constitutes a due process violation in a future case. We thus
reiterate here the admonition and concern expressed in Broncheau that we
"trust that the proceedings on remand will move forward with dispatch and
not further exacerbate the grim delay in achieving resolution of these mat-
ters," both in this case and in the other pending § 4248 certifications. 645
F.3d at 687 n.10; see also id. at 687-89 (Wynn, J., concurring).
   15
      Although Timms, acting pro se, moved for a hearing in January 2011,
he was represented by counsel at the time, and the district court denied the
motion for that reason. Timms, through counsel, did not request a hearing
until February 8, 2011.
   16
      We express no view on whether this delay would be constitutionally
acceptable in future § 4248 cases.
30                     UNITED STATES v. TIMMS
to ensure that the parties involved in those hearings would
have adequate time to prepare their evidence, including the
testimony of expert witnesses. In the context of this case, such
delay does not give rise to a due process violation.

   In sum, contrary to the district court’s conclusion, the Gov-
ernment’s lawful exercise of its authority under § 4248 is not
to blame for the delay in Timms’ certification action and did
not deny him due process. Our decision rests on the unique
factors that exist in this case, including a new statute with
debatable constitutionality; a properly filed Government certi-
fication followed by the district court’s sua sponte placement
of the case in abeyance; Timms’ failure to request a hearing
earlier in this action; an unusually lengthy appellate resolution
of the constitutionality of the statute; the burdens associated
with the consolidation of § 4248 commitment actions into one
judicial district; and the time necessary to prepare for a
§ 4248 commitment hearing. As the Supreme Court has rec-
ognized, "even though there is a point at which an unjustified
delay in completing a post-deprivation proceeding would
become a constitutional violation, the significance of such a
delay cannot be evaluated in a vacuum." Mallen, 486 U.S. at
242 (internal quotation marks and citation omitted).17 For
  17
     The district court applied the Mathews analysis, and since that is how
the parties framed their arguments, that is the analysis we have focused on
in reviewing the issue. There is some support for the Supreme Court’s
alternative analysis from Barker v. Wingo, 407 U.S. 514 (1972), to apply
here. We need not resolve which test is most appropriate because under
either, the Government prevails. Barker addressed whether a procedural
delay violated a defendant’s right to a speedy trial under the Sixth Amend-
ment. Id. at 515. However, we previously applied it to determining
whether an undue delay occurred in the context of a Fifth Amendment due
process challenge, albeit still in a criminal proceeding. See United States
v. Johnson, 732 F.2d 379 (4th Cir. 1984).
  The Barker factors are "[l]ength of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant." Id. at
381-82 (quoting Barker, 407 U.S. at 530). At most, the length of the delay
would weigh in Timms’ favor. As already noted, Timms did assert his
                        UNITED STATES v. TIMMS                            31
these reasons, we hold that the district court erred in finding
a due process violation as applied to Timms.18, 19

       C.    Characterization of § 4248 as a Civil Statute

   On cross-appeal, Timms asserts that the district court erred
in holding that § 4248 is a civil, rather than criminal statute

rights, but he did so in the wrong forum, his habeas action. Accordingly,
that factor is at best neutral. Once again, the reason for the delay here is
justified in light of the unique circumstances of this case and cannot be
attributed to the Government. Lastly, it is not yet clear whether Timms has
suffered any prejudice as a result of the delay because the district court
still has not determined whether he satisfies the criteria for commitment
under § 4248. For these reasons, we conclude that even if the Barker test
applied to Timms’ situation, it would not yield a different result.
   18
      As noted supra n. 12, our disposition of the as-applied challenge to
§ 4248 means that Timms’ facial challenge fails as well.
   19
      We also note that even if Timms’ case constituted a due process viola-
tion, the proper remedy would not be release, but to conduct the hearing
and adjudicate whether he is a "sexually dangerous person" under the stat-
ute. Moreover, we further observe that when Timms finally received the
certification hearing, the district court prolonged the proceedings by ruling
only on the constitutional issues without addressing the merits of the certi-
fication. In Johnson, we held even though a two-year delay in processing
the defendant’s appeal "may well have violated due process," "there is not
any sound reason to order defendant’s release" because the hearing had
been conducted and the appeal had been heard. 732 F.2d at 382-83 (citing
favorably out-of-circuit cases holding the same); see also United States v.
Magassouba, 544 F.3d 387, 411 (2d Cir. 2008) ("In Jackson v. Indiana,
406 U.S. [715, 738 (1972)], the Supreme Court identified a due process
denial in the more-than-three-year detention of an incompetent defendant
without a substantial probability finding. Nevertheless, the Court did not
order dismissal of the charges. Rather, it remanded the case to the state
courts for them to decide, in the first instance, whether there was a sub-
stantial probability that Jackson could be restored to competency within a
reasonable time and, if so, to ensure that his continued commitment was
justified by progress toward that goal."). Similarly, here, the proper rem-
edy would not be dismissal of the certification and release, but conducting
the hearing and determining on the merits whether Timms should be com-
mitted as a "sexually dangerous person" under § 4248(a).
32                  UNITED STATES v. TIMMS
and that consequently, the statute is unconstitutional on the
additional grounds that it fails to adequately protect various
rights afforded to criminal defendants. Timms first submits
that Comstock II expressly declined to consider this issue
because the respondents failed to preserve the argument, so
the issue should be reviewed as one of first impression.
Timms further contends that the Court must look beyond
Congress’ stated civil purpose because § 4248 is so punitive
in its effect that it imposes a criminal penalty. Specifically,
Timms points to § 4248’s failure to "sufficiently distinguish
the conditions of confinement of its detainees from those of
federal prisoners" and its omission of specific therapeutic
responsibilities as factors that distinguish it from state civil
commitment statutes that the courts have recognized as civil
in nature. (Response Br. 40.) And Timms argues that because
§ 4248 should be regarded as a criminal statute, numerous
constitutional protections (such as Ex Post Facto and Double
Jeopardy) must be provided to individuals held pursuant to it.

   We are not persuaded by Timms’ argument. He correctly
observes that the respondents in Comstock II "failed to pre-
serve [the] argument" "that § 4248 constitutes criminal, not
civil, proceedings." 627 F.3d at 518 n.1 (internal quotation
marks omitted). However, while this argument was not
expressly before us, our belief that § 4248 is a civil statute
necessarily informed our analysis of whether proof of past
conduct by "clear and convincing evidence" rather than by
"proof beyond a reasonable doubt" (a standard traditionally
reserved for criminal statutes) passed constitutional muster. In
Comstock II we analyzed Supreme Court precedent that drew
a clear line between the burden of proof required in criminal
cases and the burden of proof sufficient "to justify civil com-
mitment of mentally ill persons." Id. at 519. We noted "that
the purpose and structure of the [civil] commitment process
render it unlike any criminal prosecution" because "in a civil
commitment proceeding, ‘state power is not exercised in a
punitive sense.’" Id. at 520-21 (quoting Addington, 441 U.S.
at 428); see also id. at 522-24. And we observed that the
                       UNITED STATES v. TIMMS                           33
Supreme Court has repeatedly and "specifically reiterated that
the civil nature of a civil commitment proceeding warrants
application of the clear and convincing standard." Id. at 524
(citing Heller, 509 U.S. 312).20 We thus affirm the district
court’s conclusion that § 4248 "creates civil—not crimi-
nal—proceedings," and that Timms’ arguments relying on
§ 4248 being a criminal proceeding therefore fail.

                                   III.

   For the foregoing reasons, we reverse the district court’s
judgment dismissing the Government’s § 4248 commitment
action against Timms. The district court did not err in con-
cluding that § 4248 is a civil statute and thus is not subject to
the various constitutional safeguards placed on criminal pro-
ceedings. Nor did it err in relying on this Court’s precedent
that § 4248’s requirement that proof of past conduct by "clear
and convincing evidence" rather than "beyond a reasonable
doubt" is appropriate. Circuit precedent also forecloses
Timms’ argument that § 4248 cannot be invoked because his
criminal sentence includes post-incarceration supervised
release. However, the district court erred in finding that, as
applied to Timms, § 4248 deprived him of equal protection
and due process of law. The case is remanded for the district
  20
     The clear implications of this analysis in Comstock II led Judge Wynn,
in his concurring opinion in United States v. Broncheau, to subsequently
observe that the procedural due process concern that "the argument that
§ 4248 proceedings, although nominally civil, were actually criminal"
"was foreclosed when, in Comstock II, we reiterated that § 4248 is in fact
a civil commitment statute." 645 F.3d at 689 n.* (Wynn, J., concurring)
(citing Comstock II, 627 F.3d at 520). Furthermore, Comstock II’s charac-
terization of § 4248 as a civil statute is clearly correct. In determining
whether a statute establishes criminal or civil proceedings, courts should
look beyond the legislature’s "civil label" only upon "the clearest proof
that the statutory scheme is so punitive either in purpose or effect as to
negate the State’s intention to deem it civil." Kansas v. Hendricks, 521
U.S. 346, 361 (1997) (internal citation and alterations omitted). Here,
Timms has put forward no evidence that would cause us to reject Con-
gress’ "manifest intent" to create a civil commitment scheme. See id.
34                 UNITED STATES v. TIMMS
court to determine on the merits whether Timms meets the
§ 4248 criteria for being declared a "sexually dangerous per-
son."

                                      AFFIRMED IN PART,
                                      REVERSED IN PART,
                                         AND REMANDED
