Grant ANDERSON, Appellant v. Eric H. HOLDER, Jr., Attorney General of the United States, et al., Appellees.
No. 10-5097
United States Court of Appeals, District of Columbia Circuit.
Argued April 18, 2011. Decided Aug. 16, 2011.
651 F.3d 1165
E
Finally, Katz challenges the findings that she engaged in unauthorized trading in the accounts of Voskian, Griffin, Smith, and the Ashbahians. Those customers “all testified that Katz executed trades in their accounts without their prior authorization and that they were, at times, confused or alarmed to discover that Katz had been trading in their accounts.” SEC Op. at 30. The Ashbahians and Smith “also noted that, when they called to complain, Katz would be dismissive, telling them ‘not to worry about it.‘” Id. Katz testified that she had the authority to effect the trades she made, but the NYSE hearing panel “refused to credit Katz‘s testimony,” and the SEC accepted the NYSE‘s credibility determination. Id.
On this appeal, Katz‘s only claim is that the NYSE did not give her notice of which specific trades were allegedly unauthorized. As the Commission noted, however, “the NYSE specified that Katz had engaged in unauthorized trades ‘in most cases’ or ‘regularly,‘” at least with respect to the Voskian, Griffin, and Ashbahian accounts. Id. at 31. Accordingly, it was reasonable for the Commission to conclude that she “was thus aware that the NYSE would challenge most of the trades in her customers’ accounts.” Id. Given the NYSE‘s specification, as well as the fact that “she had a full opportunity to defend against this allegation and to cross-examine the witnesses who testified that Katz had effected transactions in their accounts without proper authorization,” id., we perceive no error in the proceedings or findings.
III
For the foregoing reasons, the order of the Commission is
Affirmed.
Grant Anderson, pro se, filed briefs for appellant.
Mary L. Wilson, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee District of Columbia. With her on the brief were Irvin B. Nathan, Acting Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General.
Jane M. Lyons, Assistant U.S. Attorney, U.S. Attorney‘s Office, argued the cause for federal appellees. With her on the brief were Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Kenneth A. Adebonojo, Assistant U.S. Attorney, entered an appearance.
Before: HENDERSON, GARLAND, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge:
While Grant Anderson was in prison serving time for a violent sexual assault, the District of Columbia enacted the Sex Offender Registration Act (SORA). By its terms, SORA requires Anderson to register as a sex offender and authorizes thе police to publicize his status. Anderson challenges SORA under various provisions of the U.S. Constitution, most notably the
I
In 1988, a jury convicted Grant Anderson of assault with intent to commit rape while armed; assaulting, resisting, or interfering with a police officer with a dangerous weapon; and two counts of first-degree burglary while armed. He was sentenced to prison for 18 years to life. In 2000, the Council of the District of Columbia passed and the mayor signed into law SORA,
Anderson was released from prison on lifetime parole in January 2009. SORA makes Anderson‘s offense of assault with intent to commit rape a “lifetime registration offense,”
II
Because Anderson‘s conviction occurred before SORA became law, we must consider whether the statute‘s application to him “constitutes retroactive punishment forbidden by the Ex Post Facto Clause.” Smith, 538 U.S. at 92. The Supreme Court described the framework that guides our analysis when it examined Alaska‘s similar statute requiring sex offender registration:
If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is “so
punitive either in purpose or effect as to negate [the State‘s] intention to deem it ‘civil.‘”
Id. (alteration in original) (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). We conclude that, like the sex offender registration requirement in Smith, SORA‘s registration requirement does not violate the
A
We are persuaded that the Council intended to create “a regulatory scheme that is civil and nonpunitive.” In the first place, the Council drafted SORA to conform to a federal law encouraging states to require sex offender registration, see
We also think it significant that the Council assigned the work of SORA to an administrative agency. That a statute authorizes an administrative agency to do its work “is prima facie evidence that [the legislature] intended to provide for a civil sanction.” Hudson v. United States, 522 U.S. 93, 103, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997); see also Hinckley, 550 F.3d at 937 (finding that federal sex offender registration requirement was civil and nonpunitive in part because of its enforcement procedures). That SORA lacks the procedural safeguards normally associated with criminal punishment is further evidence that the Council meant it to be civil. For example, SORA gives to CSOSA the authority to decide whether someone convicted of a sex crime prior to the law‘s enactment committed a registration offense.
The amicus counters that the use of CSOSA makes SORA punitive beсause the agency is involved with the administration of criminal justice. Cf. Bailey v. Drexel Furniture Co., 259 U.S. 20, 37, 42 S.Ct. 449, 66 L.Ed. 817 (1922) (concluding that statute‘s purpose was to regulate labor rather than raise revenue in part because it gave inspection authority to the Department of Labor). But the Supreme Court rejected a similar argument in Smith, concluding that using a state agency that administers criminal punishment to register sex offenders “does not render the statutory scheme itself punitive.” Smith, 538 U.S. at 96. Rather, integrating the registration process into the criminal justice system may be nothing more than an effective way to ensure that those required to register receive “[t]imely and adequate notice” of their duties. Id. As Anderson‘s case illustrates, many of those required to register under SORA are already on parole or supervised release. That the Council recognized that these programs would be most efficiently administered by a single agency does not make SORA punitive. See In re W.M., 851 A.2d at 443 (“By virtue of their convictions in Superior Court, sex offenders become subject to SORA‘s requirements, so it makes sense to coordinate the implementation of SORA with the criminal process.“).
Nor do we credit the argument that SORA‘s placement in Title 22 of the D.C.Code, “Criminal Offenses and Penalties,” suggests the Council had punishment in mind. It is true that the manner of codification may be “probative of the legislature‘s intent,” Smith, 538 U.S. at 94, but the history of SORA‘s location in the D.C.Code cuts against this argument. The Cоuncil originally codified SORA as part of Title 24 of the
Finally, the amicus points us to a snippet of legislative history in which a witness urged the Council to pass SORA in view of the need for “[a] comprehensive criminal justice response to sex offenders” that includes “incarceration, treatment, community supervision, and community notification.” Hearing on Bill 13-350 Before the Comm. on the Judiciary (D.C. Oct. 14, 1999) (statement of Joyce N. Thomas, President, Center for Child Protection and Family Support). The amicus makes much of the witness‘s characterization of registration as a “criminal justice response” to sex crimes, but testimony by a witness before the Council reveals little, if anything, about the Council‘s intent. See Indep. Bankers Ass‘n of Am. v. Farm Credit Admin., 164 F.3d 661, 668 (D.C.Cir.1999) (observing that the testimony of witnesses at congressional hearings “may not reflect [the views] of the legislators who actually voted on the bill“). In any event, not аll of the actions the witness suggested were punitive: she also characterized “treatment” as part of a “criminal justice response” even though it is not normally regarded as punishment. See Allen v. Illinois, 478 U.S. 364, 373, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986) (finding that statute was civil and nonpunitive, in part because the statute‘s purpose was “treating rather than punishing sexually dangerous persons by committing them to an institution“). We note that the D.C. Court of Appeals found what it considered a more reliable measure of thе Council‘s intent in a committee report that stated that “registration and notification are regulatory measures adopted for public safety purposes, and do not constitute criminal punishment.” D.C. Comm. on the Judiciary, Report on Bill 13-350, at 6 (1999); see In re W.M., 851 A.2d at 441. SORA‘s legislative history supports what its structure and text already tell us: the Council intended to create a civil and nonpunitive registration scheme.
B
Having concluded that the Council intended SORA to be civil, we must next determinе whether the law is “so punitive either in purpose or effect as to negate” that intent. Smith, 538 U.S. at 92 (internal quotation marks omitted). In making this assessment, we consider “whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respеct to this purpose.” Id. at 97; see also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). “[O]nly the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Hudson, 522 U.S. at 100 (internal citations omitted).
The Smith Court considered these factors and concluded that Alaska‘s sex offender registration requirement was civil and nonpunitive. 538 U.S. at 105-06. The government and the amicus agree—and Anderson does not dispute—that the regulatory scheme at issue here has not been “regarded in our history and traditions as a punishment,” and that it “has a rational connection” to the nonpunitive purpose of protecting the public from recidivist sex offenders. See id. at 97. This leaves us to consider SORA‘s “purpose or effect” in light of the remaining Smith factors. The amicus argues that SORA is different and
But Anderson lacks standing to challenge SORA‘s in-person registration requirement because it imposes no additional burden on him. One of the conditions of Anderson‘s parole is that he meet with an officer from CSOSA “at such times and in such a manner as that officer directs.” Certificate of Parole for Grant Anderson, General Conditions ¶ 3. The authority SORA gives CSOSA to require Anderson to meet with an agency official is redundant with the agency‘s power to require him to appear in person as a condition of his parole. Anderson thus lacks an injury that is “fairly traceable” to SORA‘s in-person registration requirement. Monsanto Co. v. Geertson Seed Farms, --- U.S. ---, 130 S.Ct. 2743, 2752, 177 L.Ed.2d 461 (2010). Styling Anderson‘s argument a facial challenge does not change the result. “The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.” L.A. Police Dep‘t v. United Reporting Publ‘g Corp., 528 U.S. 32, 38, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (internal quotation marks omitted).
The amicus argues that SORA‘s requirement that sex offenders register in other states where they relocate, work, or go to school,
We also do not think this requirement makes SORA “excessive in relation to its regulatory purpose.” Smith, 538 U.S. at 102. Because the states have “primary responsibility” for tracking sex offenders, the national system of registries is vulnerable to those who would evade registration by moving among jurisdictions. See Carr v. United States, --- U.S. ---, 130 S.Ct. 2229, 2238, 176 L.Ed.2d 1152 (2010). SORA‘s requirement that Anderson register in other jurisdictions is a reasonable response to this problеm, and it is not excessive. Federal law and the laws of each of the fifty states impose on Anderson redundant legal obligations to register where he relocates, works, or goes to school, see, e.g.,
In a similar vein, we are not persuaded that allowing the police to notify the community of Anderson‘s status makes SORA “excessive with respect to” its civil and nonpunitive purpose. Smith, 538 U.S. at 97. Although we do not doubt that active notification makes SORA more burdensome to sex offenders than the passive notification scheme in Smith, “[t]he excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy.” Id. at 105. Rather, we ask “whether the regulatory meаns chosen are reasonable in light of the nonpunitive objective.” Id. The effectiveness of registration depends on making vulnerable people aware of the presence of sex offenders in their communities. Empowering the police to engage in active notification where they think appropriate is not excessive in view of this legitimate regulatory goal.
Finally, the amicus argues that SORA promotes the “traditional aims of рunishment,” Smith, 538 U.S. at 97, because it deters crime by requiring that Anderson register in places beyond the District and granting police authority to actively notify the public of his status. But the Supreme Court observed in Smith that “[a]ny number of governmental programs might deter crime without imposing punishment.” 538 U.S. at 102. Thus, although SORA may deter crime, that is of little moment to the question of whether it is punitive in purpose or effect. See United States v. Ursery, 518 U.S. 267, 292, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (“[T]hough ... statutes may fairly be said to serve the purpose of deterrence, we hаve long held that this purpose may serve civil as well as criminal goals.“); cf. Hudson, 522 U.S. at 105 (“To hold that the mere presence of a deterrent purpose renders sanctions ‘criminal’ for double jeopardy purposes would severely undermine the Government‘s ability to engage in effective regulation....“). More significant to our consideration of whether a regulatory scheme promotes the traditional aims of punishment is whether it is retributive, Smith, 538 U.S. at 102, but SORA exacts no greater retribution than the civil and nonpunitive statute at issue in Smith.
Anderson and his amicus have failed to show by “the clearest proof[] that the effects of the law negate [the Council‘s] intention to establish a civil regulatory scheme.” Smith, 538 U.S. at 105. Following Smith, we conclude that neither the Council‘s intent nor SORA‘s effects are so punitive as to render SORA a form of punishment.
III
We can dispose of Anderson‘s remaining claims with dispatch. In his complaint, Anderson alleged that the defendants violated the
The amicus recognizes that Anderson failed to state a
Anderson also alleges that SORA denies him “equal protection and treatment of federal law” and “violates the Eighth Amendment.” Compl. ¶¶ 1, 16. But Anderson has never explained how SORA runs afoul of either constitutional provision, and the amicus offers no argument on the issue. Anderson‘s “the-defendant-unlawfully-harmed-me accusation[s]” are not enough to survive a motion to dismiss, Iqbal, 129 S.Ct. at 1949, and the district court was correct to reject them, see Anderson, 691 F.Supp.2d at 61-63 & n. 5. With no federal claims remaining in the case, the distriсt court also properly declined to exercise supplemental jurisdiction over Anderson‘s claim under the D.C. Human Rights Act. See
The judgment of the district court is
Affirmed.