United States v. Bobby Walker

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1104
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Eric Bacon, *
*
Plaintiff - Appellant, *
*
v. * Appeal from the United States
* District Court for the
Tom Neer, St. Charles County * Eastern District of Missouri.
Sheriff; James Keathley, Colonel, *
Superintendent Missouri State *
Highway Patrol, *
*
Defendants - Appellees. *
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Submitted: September 20, 2010
Filed: February 1, 2011
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Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
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LOKEN, Circuit Judge.
This is an interlocutory appeal from the denial of a preliminary injunction. Eric
Bacon pleaded guilty to possession of child pornography in 2004, before the Missouri
Sex Offender Registration Act (“SORA”) was amended to require registration for that
offense. See Mo. Rev. Stat. § 589.400.1(2). In 2007, the Supreme Court of Missouri
held that requiring a sex offender to register under SORA on account of a crime that
predated the statutory requirement violates the prohibition against a law “retrospective
in its operation” in Article I, § 13 of the Missouri Constitution. Doe v. Blunt, 225

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1The Ex Post Facto Clause of the United States Constitution does not apply to
civil procedures, such as sex offender registration, unless they are sufficiently
“punitive either in purpose or effect.” Smith v. Doe, 538 U.S. 84, 92 (2003)
(quotation omitted).
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S.W.3d 421, 422 (Mo. banc 2007). Therefore, for purposes of this appeal, it is
undisputed that Bacon, a Missouri resident, has no duty to register under
§ 589.400.1(2).
In 2006, Congress enacted the Sex Offender Registration and Notification Act
(“SORNA”), which provides that “a sex offender shall register, and keep the
registration current, in each jurisdiction where the offender resides.” 42 U.S.C.
§ 16913(a). It is undisputed that Bacon is a “sex offender” under SORNA. See 42
U.S.C. §§ 16911(1), (5)(A)(ii), 16911(7)(G). Unlike SORA as construed in Blunt,
SORNA’s registration requirements apply to persons whose predicate offenses predate
its enactment. See 42 U.S.C. § 16913(d); 28 C.F.R. § 72.3; United States v. May, 535
F.3d 912, 918-19 (8th Cir. 2008), cert. denied 129 S. Ct. 2431 (2009). 1
SORA also requires registration in Missouri by any person who is “required to
register under . . . federal . . . law.” Mo. Rev. Stat. § 589.400.1(7), .2. Failure to
comply with this requirement is a class D felony. § 589.425.1. In 2009, the Supreme
Court of Missouri held that sex offenders who are required to register under
§ 589.400.1(7) because of the “independent registration requirement under SORNA”
are not “exempt from registration by virtue of article I, section 13 of the Missouri
Constitution.” Doe v. Keathley, 290 S.W.3d 719, 720-21 (Mo. banc 2009). Following
this decision, the St. Charles County Sheriff’s Department informed Bacon that he
was required to register under SORA or face criminal prosecution.
Bacon then commenced this action against St. Charles County Sheriff Tom
Neer and Colonel James Keathley, Superintendent of the Missouri State Highway
Patrol. The complaint sought a preliminary injunction enjoining defendants from

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2 The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
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requiring Bacon to register under SORA and from “instituting criminal prosecution”
against him for failing to register. After issuing a temporary restraining order, the
district court 2 promptly held a preliminary injunction hearing. The parties disclosed
that Bacon had been charged with failure to register in state court the day after this
action was filed, and that the prosecutor had stayed the state criminal proceeding
pending the district court’s preliminary injunction ruling. The district court denied
the requested injunction, concluding that Bacon’s claim against Colonel Keathley is
barred by the Eleventh Amendment, and that Bacon failed to establish either a threat
of irreparable harm or a likelihood of success on the merits of his claims against
Sheriff Neer. This interlocutory appeal followed.
We were advised at oral argument that Bacon has now registered as a sex
offender under SORA, and the State has dropped its criminal charges against him. We
therefore dismiss the interlocutory appeal as moot. For additional reasons, we remand
with directions to dismiss the complaint.
I. The Preliminary Injunction Appeal Is Moot
An order denying a preliminary injunction is immediately appealable. 28
U.S.C. § 1292(a)(1). However, the appeal of an order denying a preliminary
injunction becomes moot if the act sought to be enjoined has occurred. See CMM
Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 620-21 (1st Cir. 1995);
Curtis Indus., Inc. v. Livingston, 30 F.3d 96, 97 (8th Cir. 1994). As mootness relates
to justiciability and our power to hear a case, “we must consider it even though the
parties have not raised it.” Olin Water Servs. v. Midland Research Labs., Inc., 774
F.2d 303, 306 n.3 (8th Cir. 1985). Based upon St. Charles County and Missouri State
Highway Patrol sex-offender public records, we take judicial notice that Bacon has

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registered. See Fed. R. Evid. 201(b), (c), & (f). Therefore, the act Bacon sought to
enjoin (registration) has occurred, and his appeal from the denial of preliminary
injunctive relief is moot.
II. The Merits of the Claims for Further Relief
Though Bacon’s claims for preliminary injunctive relief are moot, the entire
case may not be moot if “a favorable decision . . . would make it sufficiently likely
that [Bacon] could remove his name and identifying information from the [Missouri]
sex offender registry.” United States v. Juvenile Male, 130 S. Ct. 2518, 2519 (2010)
(quotation omitted). Though we typically remand to the district court to consider such
issues, we may reach the merits of Bacon’s claims for further relief. See 28 U.S.C.
§ 2106; Campaign For Family Farms v. Glickman, 200 F.3d 1180, 1186 (8th Cir.
2000). We exercise this power if the issues are purely legal, there are no factual
disputes, the relevant analysis is substantially related to that preliminarily conducted
by the district court, and rendering a final decision can save significant litigation
expenses. Id. at 1186-87. This inquiry requires a closer look at Bacon’s claims.
In support of the relief requested -- a declaratory judgment that SORNA is
unconstitutional and a permanent injunction -- Bacon alleged that “the only way [he]
can be required to register under Missouri law is through the provisions of SORNA,”
and that SORNA violates the Commerce Clause, the Ex Post Facto Clause, the Tenth
Amendment, and his fundamental right to travel under the United States Constitution,
as well as the federal Administrative Procedure Act. We have consistently rejected
challenges to SORNA under the Ex Post Facto Clause, the Tenth Amendment, and the

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3See, e.g., May, 535 F.3d at 918-21 (Ex Post Facto Clause and APA); United
States v. Waddle, 612 F.3d 1027, 1029 (8th Cir. 2010) (May is consistent with Carr
v. United States, 130 S. Ct. 2229 (2010)); United States v. Hacker, 565 F.3d 522, 525-
27 (8th Cir.) (Tenth Amendment), cert. denied, 130 S. Ct. 302 (2009).
4United States v. Shenandoah, 595 F.3d 151, 162-63 (3d Cir.), cert. denied, 130
S. Ct. 3433 (2010); United States v. Ambert, 561 F.3d 1202, 1209-10 (11th Cir. 2009).
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APA. 3 The right-to-travel contention has been rejected by two of our sister circuits4
and is without merit on the facts of this case because Bacon is free to travel if he
registers. Thus, we will discuss only his novel Commerce Clause allegations.
In May, we held that the federal criminal offense in 18 U.S.C. § 2250(a)(2)(B),
part of SORNA, does not violate the Commerce Clause because the offense requires
proof of travel in interstate commerce followed by a defendant’s knowing failure to
register. 535 F.3d at 921-22. In United States v. Howell, 552 F.3d 709 (8th Cir.),
cert. denied, 129 S. Ct. 2812 (2009), we addressed a different Commerce Clause
contention, that the § 2250 convictions at issue were invalid because SORNA’s
registration requirement, 42 U.S.C. § 16913(a), regulates purely non-economic,
intrastate activity and therefore is beyond Congress’s Commerce Clause power. We
rejected the contention. While expressing doubt that § 16913(a) could be upheld
under the Commerce Clause, we concluded that the statute was valid under the
Necessary and Proper Clause, Art. I, § 8, cl. 18, because “the registration of wholly
intrastate sex offenders is merely incidental to Congress’s tracking of sex offenders
in interstate commerce.” Id. at 717.
In this case, applying these cases and district court decisions (mostly overruled)
from other circuits, Bacon constructs the following Commerce Clause argument: (i)
As he has not traveled in interstate commerce and is not being prosecuted under 18
U.S.C. § 2250, neither the Commerce Clause nor the Necessary and Proper Clause
makes the federal sex-offender registration requirement in § 16913(a) constitutional
as applied to him. (ii) Admittedly, § 16913(a) is valid as an exercise of Congress’s

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power under the Spending Clause, Art. I, § 8, cl. 1. But as such, it does not impose
an affirmative obligation to register; it merely conditions federal funding on Missouri
imposing that requirement. (iii) The Supreme Court of Missouri in Keathley
misconstrued the constitutional basis for § 16913 as permitting an “independent”
federal registration requirement. (iv) Therefore, Article I, § 13 of the Missouri
Constitution as construed in Blunt bars defendants from requiring Bacon to register
under SORA and from prosecuting him for failure to do so.
Though creative, we conclude that, for several reasons, this theory fails to state
a claim upon which relief may be granted by a federal court. First, Bacon asks a
federal court to enjoin an anticipated state criminal prosecution. The traditional rule
was that courts of equity “could not enjoin criminal proceedings.” In re Sawyer, 124
U.S. 200, 210 (1888). Though that absolute prohibition has been loosened, “in the
past few decades, the Supreme Court has upheld federal injunctions to restrain state
criminal proceedings only where the threatened prosecution chilled exercise of First
Amendment rights.” Deaver v. Seymour, 822 F.2d 66, 69 (D.C. Cir. 1987) (citations
omitted); see Stolt-Nielsen, S.A. v. United States, 442 F.3d 177, 183 (3d Cir. 2006).
There is no First Amendment claim in this case. The district court’s preliminary
injunction ruling was consistent with a long-standing principle -- “the cost, anxiety,
and inconvenience of having to defend against a single criminal prosecution [are] not
by themselves . . . considered irreparable in the special legal sense of that term.”
Younger v. Harris, 401 U.S. 37, 46 (1971). Indeed, had St. Charles County officials
filed criminal charges before “proceedings of substance” took place in this action, the
district court likely would have been required to abstain altogether. See Hicks v.
Miranda, 422 U.S. 332, 349-50 (1975).
Second, in addition to injunctive relief, Bacon seeks a declaratory judgment
reflecting his construction of 42 U.S.C. § 16913(a). In general, “federal declaratory
relief is not precluded when no state prosecution is pending and a federal plaintiff
demonstrates a genuine threat of enforcement of a disputed state criminal statute.”

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Steffel v. Thompson, 415 U.S. 452, 475 (1974). However, Bacon does not allege
injury from a violation or threatened violation of a federal statutory or constitutional
right, as in Steffel. Rather, he concedes that 42 U.S.C. § 16913(a) is valid as an
exercise of Congress’s power under the Spending Clause and alleges that the Supreme
Court of Missouri’s misinterpretation of this federal statute in Keathley denied him
a right under the Missouri Constitution. In other words, he asks a federal court to
interpret a federal statute in a manner that will provide him with a defense against an
anticipated state prosecution. The Declaratory Judgment Act is procedural; it does not
expand federal court jurisdiction. Federal-question jurisdiction may not be created by
a declaratory-judgment plaintiff’s “artful pleading [that] anticipates a defense based
on federal law.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673 (1950);
see Gully v. First Nat’l Bank, 299 U.S. 109, 115 (1936). Thus, the district court lacks
subject matter jurisdiction over the declaratory judgment Commerce Clause claim
under 28 U.S.C. § 1331. See Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804,
813 (1986) (“[T]he mere presence of a federal issue in a state cause of action does not
automatically confer federal-question jurisdiction.”).
Third, Bacon’s alleged injury is not redressable in federal court and therefore
does not satisfy an element of Article III standing. See generally Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992). The alleged injury is having to register or
to face prosecution under state law for failing to do so. Even if a federal court agreed
with Bacon’s interpretation of § 16913, it would have no jurisdiction to enjoin
defendants from enforcing SORA as construed in Keathley by the Supreme Court of
Missouri. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984)
(a federal court may not “instruct[] state officials on how to conform their conduct to
state law”); Clark v. Coye, 60 F.3d 600, 603-04 (9th Cir. 1995). And if the federal
court limited its ruling to a declaration that the Supreme Court of Missouri
misinterpreted § 16913 in applying state law in Keathley, that would not redress the
holding in Keathley that sex offenders required to register under § 589.400.1(7) of
SORA are not “exempt from registration by virtue of article I, section 13 of the

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Missouri Constitution.” Of course, the Supreme Court of Missouri could then decide
to revisit its decision in Keathley. But if it did, even if it accepted a lower federal
court’s contrary interpretation of § 16913, we have no reason to believe that the state
Court would abandon its decision in Keathley that Article I, § 13 does not apply to sex
offenders who must register under § 589.400.1(7). After all, that decision was
entirely consistent with federal law as reflected in SORNA. In these circumstances,
Bacon cannot show “a substantial likelihood that the [declaratory] relief requested will
redress the injury claimed.” Duke Power Co. v. Carolina Envtl. Study Group, Inc.,
438 U.S. 59, 75 n.20 (1978) (quotation & citations omitted).
For the foregoing reasons, we dismiss as moot the appeal from the order
denying a preliminary injunction and remand to the district court with directions to
dismiss the complaint with prejudice.
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