United States v. Scott Hacker ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2427
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Scott A. Hacker, *
*
Defendant - Appellant. *
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Submitted: March 11, 2009
Filed: May 13, 2009
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Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
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BRIGHT, Circuit Judge.
Appellant Scott Hacker challenges the district court’s1 denial of his motion to
dismiss an indictment charging him with failing to register as a sex offender under the
Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. §§ 16901-
16991. We have jurisdiction over this appeal from 28 U.S.C. § 1291. Because the
district court did not err by denying Hacker’s motion, we affirm.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
FACTS AND PROCEDURAL HISTORY
The material facts are undisputed. In 1995, Hacker was convicted in Texas of
aggravated sexual assault of a child, a first-degree felony, for which he received a
sentence of 10 years’ probation. In 1996, Hacker was convicted of sexual assault in
Texas and sentenced to five years’ imprisonment. After being released from prison
in 2000, Hacker registered as a sex offender in Texas.
In 2001, Hacker notified the Texas Department of Public Safety that he moved
to California. He initially registered in California, but failed to keep his registration
in compliance with California law after December 5, 2002. In the summer of 2002,
Hacker moved to Wisconsin. Although he registered on arrival, he did not notify
California authorities that he had moved to another state. In May 2007, Hacker
moved to Nebraska, where he obtained a Nebraska driver’s license. Hacker did not
register as a sex offender in Nebraska.
In July 2007, Hacker was indicted for failing to register in accordance with
SORNA, in violation of 18 U.S.C. § 2250(a). Specifically, the indictment alleged that
Hacker, having been convicted in Texas of an offense requiring him to register as a
sex offender, traveled in interstate commerce to Nebraska and knowingly failed to
register as a sex offender there.
Hacker moved to dismiss the indictment, arguing that Congress (1) lacked
authority under the Commerce Clause to enact SORNA’s registration requirements
and penalty provision; (2) violated the Tenth Amendment by compelling states to
accept registrations from a federally mandated sex-offender program; and (3) granted
the Attorney General the authority to legislate the scope of SORNA’s retrospective
reach in violation of the non-delegation doctrine.
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After a hearing, Magistrate Judge Thomas D. Thalken issued a report and
recommendation, which concluded that Hacker’s motion should be denied. In
February 2008, the district court adopted the report and recommendation in its
entirety.
Hacker then entered into a conditional guilty-plea agreement with the
government, reserving the right to appeal the denial of his motion to dismiss. In June
2008, Hacker was sentenced to 18 months’ imprisonment, followed by 10 years’
supervised release. This timely appeal follows.
DISCUSSION
We review de novo the denial of a motion to dismiss an indictment. See United
States v. Smith, 171 F.3d 617, 619 (8th Cir. 1999). Hacker challenges the
constitutionality of SORNA, contending that it violates the Commerce Clause, the
Tenth Amendment, and the non-delegation doctrine. “We review a challenge to the
constitutionality of a federal statute de novo.” United States v. Betcher, 534 F.3d 820,
823 (8th Cir. 2008). Hacker also argues, for the first time on appeal, that the Attorney
General violated a provision of the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 553, in promulgating an interim rule that made SORNA’s registration requirement
apply retroactively. This is a question of law, which we review de novo. See 5 U.S.C.
§ 706(2)(D); Gumaneh v. Mukasey, 535 F.3d 785, 788 (8th Cir. 2008) (“We review
questions of law de novo . . . .”).
I. SORNA
Title I of the Adam Walsh Child Protection and Safety Act of 2006 (“Adam
Walsh Act”), Pub. L. No. 109-248 (2006), includes SORNA. The Adam Walsh Act
became law on July 27, 2006. SORNA’s registration provision, § 16913, provides,
in relevant part:
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(a) In general
A sex offender shall register, and keep the registration current, in
each jurisdiction where the offender resides, where the offender is an
employee, and where the offender is a student. For initial registration
purposes only, a sex offender shall also register in the jurisdiction in
which convicted if such jurisdiction is different from the jurisdiction
of residence.
(b) Initial registration
The sex offender shall initially register--
(1) before completing a sentence of imprisonment with respect to
the offense giving rise to the registration requirement; or
(2) not later than 3 business days after being sentenced for that
offense, if the sex offender is not sentenced to a term of
imprisonment.
(c) Keeping the registration current
A sex offender shall, not later than 3 business days after each change
of name, residence, employment, or student status, appear in person
in at least 1 jurisdiction involved pursuant to subsection (a) of this
section and inform that jurisdiction of all changes in the information
required for that offender in the sex offender registry. That
jurisdiction shall immediately provide that information to all other
jurisdictions in which the offender is required to register.
SORNA also created a federal criminal offense, 18 U.S.C. § 2250, of failing to
register as a sex offender. Section 2250, provides, in relevant part:
(a) In general. --Whoever–
(1) is required to register under the Sex Offender Registration and
Notification Act;
(2)(A) is a sex offender as defined for the purposes of the Sex
Offender Registration and Notification Act by reason of a conviction
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under Federal law (including the Uniform Code of Military Justice),
the law of the District of Columbia, Indian tribal law, or the law of
any territory or possession of the United States; or (B) travels in
interstate or foreign commerce, or enters or leaves, or resides in,
Indian country; and
(3) knowingly fails to register or update a registration as required by
the Sex Offender Registration and Notification Act;
shall be fined under this title or imprisoned not more than 10 years, or
both.
II. Commerce Clause
Hacker argues first that SORNA’s registration requirements and criminal-
enforcement provision violate the Commerce Clause. Specifically, Hacker asserts that
SORNA does not regulate one of the three categories of activity described by the
Supreme Court in United States v. Lopez, 514 U.S. 549 (1995).
But as Hacker acknowledges, our case law forecloses this argument. In United
States v. May, we rejected a similar challenge to § 2250, holding that SORNA’s
penalty provision “contains a sufficient nexus to interstate commerce.” 535 F.3d 912,
922 (8th Cir. 2008). And recently, this court upheld the registration requirements in
§ 16913 against a Commerce Clause challenge, concluding that they “are reasonably
adapted to the legitimate end of regulating ‘persons or things in interstate commerce’
and ‘the use of the channels of interstate commerce.’” United States v. Howell, 552
F.3d 709, 717 (8th Cir. 2009) (quoting Lopez, 514 U.S. at 558-59).
We are bound by these decisions. See Betcher, 534 F.3d at 823 (“[I]t is a
cardinal rule in our circuit that one panel is bound by the decision of a prior panel.”);
Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002). Because we have already
concluded that SORNA’s registration and penalty provisions are valid exercises of
congressional authority under the Commerce Clause, we reject Hacker’s argument.
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III. Tenth Amendment
Hacker argues next that the district court should have dismissed the indictment
because “SORNA impermissibly encroaches upon state power in violation of the
Tenth Amendment.” This appears to be an issue of first impression not only in our
circuit, but also in any federal appellate court.2
But before reaching the merits of Hacker’s Tenth Amendment argument, we
must ensure that he has standing to raise the argument. See Pucket v. Hot Springs Sch.
Dist. No. 23-2, 526 F.3d 1151, 1156 (8th Cir. 2008) (recognizing that standing is a
jurisdictional requirement and “can be raised by the court sua sponte at any time
during the litigation” (internal quotation marks omitted)). We conclude that he does
not.3
The Eighth Circuit has not decided whether a private individual has standing
to bring a Tenth Amendment claim.4 The Tenth Amendment provides that “powers
not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.” U.S. Const. amend.
X. It appears that six circuits have analyzed whether a private party has standing to
2
Many district courts have, however, considered this issue. See, e.g., United
States v. Hall, 577 F. Supp. 2d 610, 616-17 (N.D.N.Y. 2008); United States v.
Vasquez, 576 F. Supp. 2d 928, 938-39 (N.D. Ill. 2008); United States v. Gould, 526
F. Supp. 2d 538, 549 (D. Md. 2007). We are unaware of a case holding that SORNA
violates the Tenth Amendment.
3
Neither party raised the question of standing to assert a Tenth Amendment
claim in its opening brief. This court requested supplemental briefing on the issue.
4
In Johnson Controls, Inc. v. City of Cedar Rapids, we concluded that a city had
standing to assert that both it and the State of Iowa were “state entit[ies] protected by
the [T]enth [A]mendment” and reached the merits of the city’s Tenth Amendment
claim. 713 F.2d 370, 377 (8th Cir. 1983). But we did not address whether a private
individual has standing.
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assert a Tenth Amendment claim. The Seventh and Eleventh Circuits have permitted
private parties to bring such claims. See Gillespie v. City of Indianapolis, 185 F.3d
693, 703-04 (7th Cir. 1999); Atlanta Gas Light Co. v. U.S. Dep’t of Energy, 666 F.2d
1359, 1368 n.16 (11th Cir. 1982). Conversely, the First, Second, Ninth and Tenth
Circuits have concluded that private parties lack standing to raise a Tenth Amendment
claim. See Oregon v. Legal Servs. Corp., 552 F.3d 965, 972 (9th Cir. 2009); Brooklyn
Legal Servs. Corp. B. v. Legal Servs. Corp., 462 F.3d 219, 234-36 (2d Cir. 2006);
Medeiros v. Vincent, 431 F.3d 25, 33-36 (1st Cir. 2005); United States v. Parker, 362
F.3d 1279, 1284 (10th Cir. 2004). We now join the majority of circuits and hold that
a private party does not have standing to assert that the federal government is
encroaching on state sovereignty in violation of the Tenth Amendment absent the
involvement of a state or its instrumentalities.
In Tenn. Elec. Power Co. v. Tenn. Valley Auth., state-chartered utility
companies argued that the sale of electric power by a federally chartered corporation
violated the Tenth Amendment because the federal sales lowered electricity prices.
See 306 U.S. 118, 143 (1939). The federal power sales forced the state-chartered
companies to lower their prices, and the companies argued that such a scheme was an
impermissible federal regulation of a local matter. See id. In rejecting the utility
companies’ argument, the Supreme Court stated:
The sale of government property in competition with others is not a
violation of the Tenth Amendment. As we have seen there is no
objection to the [federally chartered corporations’] operations by the
states, and, if this were not so, the [utility companies], absent the states
or their officers, have no standing in this suit to raise any question under
the [Tenth] [A]mendment.
Id. at 144. Accordingly, it appears that the Supreme Court has concluded that state
representation is a prerequisite for a federal court to exercise jurisdiction over a Tenth
Amendment challenge.
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Although we recognize that the Supreme Court’s pronouncement in Tenn. Elec.
Power Co. has been disputed, we nonetheless apply its rule here.5 We are aware of
no directly contradictory authority from the Supreme Court. See Hohn v. United
States, 524 U.S. 236, 252-53 (1998) (“Our decisions remain binding precedent until
we see fit to reconsider them, regardless of whether subsequent cases have raised
doubts about their continuing vitality.”). And our conclusion finds support in the
Court’s more general standing jurisprudence. For example, prudential standing
principles require that a plaintiff “‘generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal rights or interests of third
parties.’” Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 80
(1978) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). The approach we adopt
today comports with this prudential standing principle.
Here, Hacker challenges SORNA in his individual capacity; there is no plaintiff
that represents a state or even its instrumentality. Thus, the “requisite representation
by the states or their officers is notably absent.” Brooklyn Legal Servs., 462 F.3d at
234. And Hacker has not even argued that his interests are aligned with those of a
state.6 Accordingly, we conclude that Hacker lacks standing to raise a Tenth
Amendment challenge to SORNA and do not reach the merits of his argument.
5
See, e.g., Gillespie, 185 F.3d at 700 (arguing that Tenn. Elec. Power Co. has
been weakened and citing cases).
6
We note that at least one appellate court has speculated that a private party
could assert a Tenth Amendment claim by showing that its claim “align[s] with the
state’s interest.” Parker, 362 F.3d at 1284 (citing Mountain States Legal Found. v.
Costle, 630 F.2d 754, 761 (10th Cir. 1980)). But we need not decide whether a state
must actually be a party to a Tenth Amendment challenge or if it is sufficient for a
private party to assert that its interests are merely aligned with those of a state. Here,
Hacker has not even argued that his interests are aligned with a state’s interest.
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IV. Non-delegation Doctrine
Hacker also argues that the district court should have dismissed the indictment
because Congress impermissibly delegated to the Attorney General the authority to
determine SORNA’s retroactive effect. In so doing, Hacker argues, Congress allowed
the Attorney General to “legislate the scope of SORNA’s reach.”7
SORNA requires that a sex offender register either before he completes a term
of imprisonment “with respect to the offense giving rise to the registration
requirement” or, if he receives no prison time, within three days of sentencing. §
16913(b). For those sex offenders “unable to comply” with the initial registration
requirements in subsection (b), SORNA delegated the authority to the Attorney
General to determine its applicability. See § 16913(d). Specifically, subsection (d)
provides that the Attorney General
shall have the authority to specify the applicability of the requirements
of this subchapter to sex offenders convicted before July 27, 2006 or its
implementation in a particular jurisdiction, and to prescribe rules for the
registration of any such sex offenders and for other categories of sex
offenders who are unable to comply with subsection (b) of this section.
See id. The Attorney General exercised his authority under this subsection in
February 2007, when he issued an interim rule, which provides that “[t]he
requirements of [SORNA] apply to all sex offenders convicted of the offense for
which registration is required prior to enactment of that Act.” 28 C.F.R. § 72.3
(2007); see also 72 Fed. Reg. 8894-01, 8896 (Feb. 28, 2007) (providing that it is
7
The Constitution provides that “[a]ll legislative Powers herein granted shall be
vested in a Congress of the United States.” U.S. Const. art. I, § 1. The Supreme Court
has determined that this injunction prohibits Congress from delegating its legislative
power to another branch. See Mistretta v. United States, 488 U.S. 361, 371-72 (1989).
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“indisputably clear that SORNA applies to all sex offenders (as the Act defines that
term) regardless of when they were convicted”).
Citing May, the government asserts that Hacker lacks standing to bring a non-
delegation challenge because he is not a “person unable to register before SORNA’s
enactment” and, therefore, he lacks the requisite personal stake in the controversy. In
1994, May pleaded guilty to the underlying sex offense, a misdemeanor, in Oregon
state court. See 535 F.3d at 914. Subsequently, May traveled to Maryland and Iowa
and failed to register in those states or update his Oregon registration. See id. at 915.
In 2007, May was indicted for violating SORNA, the district court denied his non-
delegation challenge, and refused to dismiss his indictment. See id. On appeal, this
court held that May lacked standing to raise a non-delegation challenge to subsection
(d) because “May was not a person unable to register before SORNA’s enactment and
§ 16913(d)[] . . . does not even apply to him.” Id. at 921. The May court reached this
result by apparently construing subsection (d)’s “unable to comply” language as not
applying to a third category of sex offenders: those who had already registered
through a state sex-offender-registration program (but not with SORNA’s system).
We are obliged to follow May’s interpretation of § 16913(d). See Betcher, 534
F.3d at 823 (noting that one panel is bound by the decision of a prior panel).
Accordingly, we conclude that Hacker lacks standing to assert a non-delegation-
doctrine challenge to SORNA. See May, 535 F.3d at 921.
V. Administrative Procedure Act
Hacker argues finally that the Attorney General’s interim order, which requires
sex offenders who were convicted of the offense for which registration was required
before SORNA to register, violates the APA. Specifically, Hacker asserts that the
Attorney General did not have good cause to promulgate the rule without the typical
thirty-day notice-and-comment period. See 5 U.S.C. § 553(d).
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As discussed above, May held that a similarly situated individual did not have
standing to challenge Congress’s delegation of the authority to create the interim rule.
See 535 F.3d at 920-21. Because we are bound by May, Hacker was not “unable to
comply with” the provisions of § 16913(b) and he, therefore, is not personally affected
by the interim rule. See id. at 921. We therefore conclude that Hacker lacks standing
to challenge the interim rule on APA grounds.
CONCLUSION
Based on the foregoing, we affirm.
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