Kennedy v. Allera

ON REHEARING

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL EDWARD KENNEDY, 

#35377-098,

Petitioner-Appellant,

v.

MICHAEL P. ALLERA, United States

Probation Service; WILLIAM S.

HENRY, United States Probation

Service; EDWARD F. REILLY,  No. 08-8513

Chairman, United States Parole

Commission; JOHN JOSEPH CURRAN,

JR., Office of the Attorney

General; KATHRYN SEIFERT,

Director, Eastern Shore

Psychological Services,

Respondents-Appellees.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson Everett Legg, Chief District Judge.

(1:05-cv-00129-BEL)

Argued: May 13, 2010

Decided: July 15, 2010

Before NIEMEYER, GREGORY, and SHEDD,

Circuit Judges.

2 KENNEDY v. ALLERA

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Gregory and Judge Shedd joined.

OPINION

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.

Larry David Adams, OFFICE OF THE UNITED STATES

ATTORNEY, Baltimore, Maryland, for Appellees. ON

BRIEF: James Wyda, Federal Public Defender, Baltimore,

Maryland, for Appellant. Rod J. Rosenstein, United States

Attorney, Baltimore, Maryland, for Appellees.

OPINION

NIEMEYER, Circuit Judge:

Having been released on parole after serving 20 years of a

life sentence of imprisonment for a 1980 federal conviction

for rape and murder, Michael Kennedy was directed by his

U.S. Probation Officer, as a condition of parole, to report to

the Wicomico County, Maryland, Sheriff’s Office and to reg-

ister as a sex offender, in accordance with the Sex Offender

Registration and Notification Act ("SORNA"), Title I of the

Adam Walsh Child Protection and Safety Act of 2006, Pub.

L. No. 109-248, §§ 101-155, 120 Stat. 587, 590-611 (codified

primarily at 42 U.S.C. §§ 16901-16962 and 18 U.S.C.

§ 2250). See 42 U.S.C. § 16913(a) (imposing a duty on sex

offenders to register in the States in which they reside, work,

and study); 28 C.F.R. § 72.3 (making SORNA applicable to

those convicted of a sex offense prior to SORNA’s enact-

ment). Acknowledging the broad scope of his Probation Offi-

cer’s authority, Kennedy nonetheless argues that the order to

register was unreasonable because (1) it was premised on an

incorrect reading of SORNA; (2) he was unable lawfully to

KENNEDY v. ALLERA 3

register in Maryland under the terms of Maryland’s state reg-

istry; and (3) the order violated the Tenth Amendment by

commandeering Maryland officials to register him in viola-

tion of Maryland law.

We conclude that because SORNA lawfully imposes, as a

matter of federal law, registration obligations directly on sex

offenders, such as Kennedy, the Probation Officer acted

within his discretion in imposing the registration requirement

and that Kennedy is not relieved of that duty by any restric-

tion in Maryland law or by Maryland’s failure to implement

SORNA. We also reject Kennedy’s Tenth Amendment chal-

lenge. Accordingly, we vacate our earlier opinion, Kennedy v.

Allera, No. 08-8513, 361 F. App’x 442 (4th Cir. Oct. 22,

2009) (affirming on the ground that Kennedy was required to

register under Maryland law independent of his duty under

SORNA), and affirm the judgment of the district court for the

reasons given herein.

I

In December 1980, a federal jury in California convicted

Michael Kennedy of raping and murdering Maria Lopez de

Felix. At the time of the crime, Kennedy was employed as an

Immigration and Naturalization Officer, and the victim was a

Mexican national who had attempted to enter the United

States illegally. According to the facts presented at trial, Ken-

nedy was escorting Lopez de Felix to the Mexican border

when he led her to an unoccupied building, raped and stran-

gled her, and left her body on an adjacent walkway. Follow-

ing his conviction, Kennedy was sentenced to life

imprisonment.

After serving 20 years in federal prison, Kennedy was

released on parole in January 2000 to the supervision of the

U.S. Parole Commission in the District of Maryland. Included

in the standard conditions of his release was the requirement

that Kennedy register as a sex offender in accordance with the

4 KENNEDY v. ALLERA

laws of any State with which he had contact, as directed by

his U.S. Probation Officer. The condition provided specifi-

cally:

If you have been convicted of any sexual offense

under District of Columbia or federal law (including

Uniform Code of Military Justice offenses), you

must report for registration with your state sex

offender registration agency as directed by your U.S.

Probation Officer. You are required to report for reg-

istration in any state in which you live, work, attend

school, or pursue any vocation. You must be regis-

tered in compliance with applicable state law that

applies to current or prior federal, state, or local con-

victions for sexual offenses, and in compliance with

42 U.S.C. § 14072(i) (which makes it a federal crime

for any offender covered by 18 U.S.C. § 4042 not to

register in accordance with state law). If there is any

question as to whether or where you are required to

register, you must seek and follow the guidance of

your U.S. Probation Officer.

J.A. 18.

When Kennedy’s U.S. Probation Officer, Michael Allera,

instructed Kennedy to register as a sex offender in Maryland

in accordance with Maryland law, Kennedy objected, arguing

that Maryland law did not require him to register. Nonethe-

less, Kennedy reported to the Wicomico County Sheriff’s

Office to register, as Allera had directed. The Sheriff’s Office,

however, refused to accept Kennedy’s registration, conclud-

ing that Kennedy was not required to register under Maryland

law. Consequently, Officer Allera withdrew his instruction to

Kennedy to register in Maryland as a sex offender.

In 2004, Officer Allera learned of several troubling inci-

dents in which Kennedy had acted inappropriately toward

women. In addition, Allera received a report from Kennedy’s

KENNEDY v. ALLERA 5

therapist indicating that recent evaluations suggested that

Kennedy posed a moderate risk of committing another sex

offense. Officer Allera submitted those facts to the Parole

Commission, and the Commission modified Kennedy’s parole

conditions to require him to submit to a polygraph examina-

tion and to continue participating in a sex-offender treatment

program. After Kennedy objected to these conditions, the

Commission’s National Appeals Board affirmed them on Jan-

uary 7, 2005. In response, Kennedy filed a pro se petition for

habeas corpus under 28 U.S.C. § 2241 in the district court,

challenging his new parole conditions on constitutional and

statutory grounds.

On July 27, 2006, while Kennedy’s habeas petition was

pending, Congress enacted SORNA, which provides that "[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."

42 U.S.C. § 16913(a). In addition, SORNA gave the Attorney

General of the United States the authority to specify its appli-

cability to sex offenders convicted before its enactment or its

implementation in a particular jurisdiction. Id. § 16913(d).

Pursuant to this authority, the Attorney General issued a regu-

lation on February 28, 2007, making SORNA’s registration

requirements applicable to "all sex offenders, including sex

offenders convicted of the offense . . . prior to the enactment

of [SORNA]." 28 C.F.R. § 72.3.

In response to SORNA’s enactment and the Attorney Gen-

eral’s regulation, Officer Allera officially instructed Kennedy,

by letter dated March 16, 2007, to register as a sex offender

under SORNA. In response to this letter, Kennedy supple-

mented his habeas petition to include a challenge to the legal-

ity of this condition and any obligation to register under

SORNA. At the same time, Kennedy also filed a motion for

a temporary restraining order and preliminary injunction,

requesting that the district court enjoin Officer Allera from

requiring him to register. This motion was later withdrawn,

6 KENNEDY v. ALLERA

however, when the Parole Commission agreed to refrain from

ordering Kennedy to register as a sex offender while the mer-

its of his habeas petition were pending and while the Parole

Commission was considering him for early termination of

parole.

On November 13, 2007, the Parole Commission denied

Kennedy early termination of parole, and the National

Appeals Board thereafter affirmed the ruling. The Board

stated further:

[T]he Commission has not specifically required you

to register as a sex offender under Maryland law

because it had been advised that there was a question

of the applicability of the law to you. In good faith,

the Commission has awaited a ruling on the issue.

However, the National Appeals Board has deter-

mined that, under the Sex Offender Registration and

Notification Act (SORNA), you are required to reg-

ister as a sex offender. See U.S. v. Gould, 526 F.

Supp. 2d 538 (D. Md. 2007). The Board affirms the

condition of parole that requires you to register as a

sex offender.

J.A. 96. To implement the ruling, Officer Allera sent Kennedy

a letter dated April 18, 2008, which stated:

Dear Mr. Kennedy,

This is a follow-up to my phone message on

04/18/2008. As you are aware, a condition of your

parole states if you have been convicted of any sex-

ual offense under District of Columbia or federal law

you must report for registration with your state sex

offender registration agency as directed by your U.S.

Probation Officer. You are required to report for reg-

istration in any state in which you live, work, attend

school, or pursue any vocation. This condition was

KENNEDY v. ALLERA 7

held in abeyance pending further research of the

matter.

As indicated in the Notice of Action on Appeal dated

March 26, 2008, the Parole Board affirmed the con-

dition of your parole that requires you to register as

a sex offender. As noted in the document, this was

based on a decision by the National Appeals Board.

You are hereby instructed to report to Lieutenant

Roberts . . . at the Wicomico Sheriff’s Office . . . and

register as a sex offender on April 30, 2008 at 10:00

am.

J.A. 97 (emphasis added).

After receiving this letter, Kennedy renewed his motion for

a temporary restraining order and preliminary injunction to

prohibit the Parole Commission from requiring him to register

as a sex offender, challenging the constitutionality of SORNA

in various respects and arguing that SORNA did not apply to

him because Maryland law did not require him to register. In

response, the Parole Commission agreed to delay enforcing its

requirement that Kennedy register as a sex offender until after

the district court ruled on Kennedy’s habeas petition and

motion for an injunction.

Thereafter, the district court denied both Kennedy’s habeas

petition and his motion for an injunction, explaining that

SORNA’s "clear and unequivocal requirement that individu-

als convicted of sex offenses must register as sex offenders

under federal law" applied to him even though Maryland had

not yet fully implemented SORNA, noting that Maryland has

a registry in which Kennedy could register. Kennedy v. Allera,

No. 1:05-CV-00129-BEL, slip op. at 5 (D. Md. June 10,

2008). The court also summarily rejected Kennedy’s constitu-

tional and statutory challenges to SORNA, explaining that

"[t]hese arguments have been considered and consistently

8 KENNEDY v. ALLERA

rejected by courts across the country, all of which have con-

firmed the constitutionality of SORNA and the regulations

associated with it. The Court concurs in these analyses and

will not belabor these points here." Id. at 6-7 (citations omit-

ted). Finally, the court found significant the fact that "[a]s

Kennedy acknowledges, the Commission has broad authority

to impose conditions on his parole that are reasonably related

to his offense and personal characteristics." Id. at 7. It con-

cluded that Kennedy thus cannot avoid the condition that he

"‘report for registration with [his] state sex offender registra-

tion agency as directed by [his] U.S. Probation Officer.’" Id.

(quoting Kennedy’s parole conditions).

From the entry of the district court’s order, dated June 10,

2008, Kennedy appealed to this court. He also reported to the

Wicomico County Sheriff’s Office to be registered as a sex

offender, and the Sheriff’s Office accepted his registration.

Kennedy is now registered in the Maryland sex offender reg-

istry.

By an earlier unpublished opinion, we affirmed the district

court’s order, concluding that Kennedy’s challenges to

SORNA made no difference because he was independently

required by Maryland law to register as a sex offender. See

Kennedy v. Allera, No. 08-8513, 361 F. App’x 442, 443-45

(4th Cir. Oct. 22, 2009).

On November 2, 2009, Kennedy filed a petition for rehear-

ing, arguing that we had misinterpreted Maryland law in hold-

ing that Maryland law required him to register as a sex

offender. Kennedy argued that under Maryland law, sex

offenders whose offenses were committed prior to July 1,

1997, are only required to register if they were previously

subject to registration requirements in another State or were

under the supervision of a "supervising authority" on October

1, 2001, and that he did not fall within the terms of these pro-

visions because he had never been required to register in

another State and because the U.S. Parole Commission was

KENNEDY v. ALLERA 9

not included in the statutory definition of "supervising author-

ity." By an order dated March 4, 2010, we granted Kennedy’s

petition for rehearing.

II

The U.S. Parole Commission has broad authority to "im-

pose reasonable conditions on an order granting parole," 18

U.S.C. § 4203(b)(2), and because actions of the Parole Com-

mission taken pursuant to this authorization are "committed to

agency discretion for purposes of 5 U.S.C. § 701(a)(2)," 18

U.S.C. § 4218(d), they are insulated from judicial review.1 See

Garcia v. Neagle, 660 F.2d 983, 988-89 (4th Cir. 1981);

Hackett v. U.S. Parole Comm’n, 851 F.2d 127, 129 (6th Cir.

1987) ("The federal court’s scope of review over a decision

by the Parole Commission is extremely limited"). "In general,

[however,] even where action is committed to absolute

agency discretion by law, courts have assumed the power to

review allegations that an agency exceeded its legal authority,

acted unconstitutionally, or failed to follow its own regula-

tions." Garcia, 660 F.2d at 988. Thus, our review of actions

of the Parole Commission is limited to claims that it has vio-

lated "constitutional, statutory, regulatory, or other restric-

tions, [and we] may not review [Commission] action where

the challenge is only to the decision itself." Id.

Recognizing that the Parole Commission has broad author-

ity to impose reasonable conditions on his parole, Kennedy

argues nevertheless that the Parole Commission’s order for

him to register as a sex offender was unreasonable because (1)

the order was premised on an incorrect interpretation of

1

These and other provisions regarding parole from federal convictions,

18 U.S.C. §§ 4201-4218, were repealed by the Sentencing Reform Act of

1984, Title II, ch. II of Pub. L. 98-473, § 218(a)(5), 98 Stat. 1837, 2027,

but remain in effect for individuals convicted of an offense before the

effective date of the repeal, id. § 235(b); United States Parole Commission

Extension Act of 2008, Pub. L. No. 110-312, § 2, 122 Stat. 3013, 3013.

10 KENNEDY v. ALLERA

SORNA; (2) "Mr. Kennedy was unable to lawfully register

under the terms of the Maryland state registry, and in turn,

unable to lawfully comply with the Parole Commission’s

Order"; and (3) the order "violated the Tenth Amendment by

commandeering the State of Maryland to register Mr. Ken-

nedy in violation of its own state law."2 We address these

arguments in order.

A

To begin, although Kennedy contends that the special

parole condition requiring him to register in Maryland was

based on an incorrect interpretation of SORNA, it is unclear

whether this claim even falls within the scope of review per-

mitted by 5 U.S.C. § 701(a)(2). See Garcia, 660 F.2d at 988.

Moreover, even if this claim were reviewable, it would fail on

the merits, as it remains clear that SORNA imposes a federal

duty on sex offenders to register "in each jurisdiction where

the offender resides, where the offender is an employee, and

where the offender is a student." 42 U.S.C. § 16913(a); see

also Applicability of the Sex Offender Registration and Notifi-

cation Act, 72 Fed. Reg. 8894, 8895 (Feb. 28, 2007)

("SORNA directly imposes registration obligations on sex

offenders as a matter of federal law . . ."). SORNA further

vests the Attorney General with "the authority to specify the

applicability of the requirements of this subchapter to sex

offenders convicted before July 27, 2006 or its implementa-

tion in a particular jurisdiction," 42 U.S.C. § 16913(d), and

the Attorney General has done so, specifying that SORNA

applies "to all sex offenders, including sex offenders con-

victed of the offense for which registration is required prior

2

Kennedy also made several other challenges to SORNA—namely, that

SORNA exceeds Congress’ power under the Commerce Clause and that

the Attorney General violated the Administrative Procedure Act by pro-

mulgating the interim regulation making SORNA retroactive without

notice and comment—but those challenges have since both been rejected

by United States v. Gould, 568 F.3d 459, 461 (4th Cir. 2009).

KENNEDY v. ALLERA 11

to the enactment of that Act," 28 C.F.R. § 72.3. As Kennedy

was convicted of rape and murder in 1980, he qualifies as a

sex offender under 42 U.S.C. § 16911(1), (5), and thus he was

required by SORNA to register in Maryland, his state of resi-

dence.

Notwithstanding this unambiguous directive of federal law,

Kennedy contends that because he was unable to "initially

register," consistent with 42 U.S.C. § 16913(b)(1), a provision

that requires sex offenders to "initially register . . . before

completing a sentence of imprisonment with respect to the

offense giving rise to the registration requirement," he is

relieved of any duty to comply with SORNA until the Act is

implemented in Maryland. As support for this proposition, he

relies on guidelines published by the Department of Justice,

see The National Guidelines for Sex Offender Registration

and Notification ("National Guidelines"), 73 Fed. Reg.

38,030, 38,063 (July 2, 2008), which, he claims, make clear

that because of his inability to register initially under

§ 16913(b)(1), he has no duty to register under SORNA until

(1) Maryland implements SORNA; (2) he is fully instructed

about SORNA’s requirements; and (3) he receives a signed

acknowledgment of such instructions.

In making this argument, however, Kennedy overlooks the

fact that the section of the National Guidelines on which he

relies addresses the duty of jurisdictions to identify and regis-

ter sex offenders who cannot be registered under the ordinary

initial registration procedure. That section does nothing to

negate Kennedy’s independent duty as a sex offender to regis-

ter under SORNA. The National Guidelines, which were "is-

sued to provide guidance and assistance to covered

jurisdictions . . . in implementing the SORNA standards in

their registration and notification programs," 73 Fed. Reg. at

38,044, repeat that "SORNA applies to all sex offenders,

including those convicted of their registration offenses prior

to the enactment of SORNA or prior to particular jurisdic-

tions’ incorporation of the SORNA requirements into their

12 KENNEDY v. ALLERA

programs," id. at 38,063. In addition, the National Guidelines

instruct jurisdictions that they

should endeavor to register [sex offenders with pre-

SORNA or pre-SORNA-implementation convictions

who remain in the prisoner, supervision, or regis-

tered sex offender populations at the time of imple-

mentation] in conformity with SORNA as quickly as

possible, including fully instructing them about the

SORNA requirements, obtaining signed acknowl-

edgments of such instructions, and obtaining and

entering into the registry all information about them

required under SORNA.

Id. Recognizing, however, that "it may not be feasible for a

jurisdiction" to fulfill these duties immediately, the National

Guidelines authorize jurisdictions "to phase in SORNA regis-

tration for such sex offenders." Id. Significantly, though, the

grace period afforded to jurisdictions has no bearing on the

independent duty imposed on sex offenders, such as Kennedy,

to register. See 72 Fed. Reg. at 8895 ("SORNA’s direct fed-

eral law registration requirements for sex offenders are not

subject to any deferral of effectiveness"); United States v.

Gould, 568 F.3d 459, 465 (4th Cir. 2009) ("We conclude that

the requirement imposed on individuals to register is indepen-

dent of the requirement imposed on the States to implement

the enhanced registration and notification standards of

SORNA").

Accordingly, we conclude that the Parole Commission cor-

rectly determined that SORNA requires Kennedy to register

in Maryland, and therefore Kennedy’s argument that the con-

dition on his parole requiring him to register is unreasonable

because it is premised on an incorrect interpretation of his

duties under SORNA is without merit. See 18 U.S.C.

§ 4209(a) ("[T]he [Parole] Commission shall impose as a con-

dition of parole for a person required to register under

KENNEDY v. ALLERA 13

[SORNA] that the person comply with the requirements of

that Act").

B

Kennedy also argues that the Parole Commission’s order

for him to register as a sex offender in Maryland was unrea-

sonable because he was "unable to lawfully register under the

terms of the Maryland state registry, and in turn, unable to

lawfully comply with the Parole Commission’s Order." In

making this argument, Kennedy maintains that because he is

not required to register by Maryland law, he is therefore pro-

hibited from registering in Maryland. Consequently, he

argues, the Parole Commission exceeded its lawful authority

by imposing a condition on him that required him to violate

state law.

This argument, however, rests on the faulty premise that

only those who are required to register are lawfully able to

register. Maryland law creates a sex offender registry in

which Kennedy can register even if we were to assume, for

purposes of argument, that Maryland law does not of its own

force require him to register. Although he contends that the

failure of Maryland law to require him to register operates as

a prohibition on registering, Kennedy has cited to no provi-

sion of Maryland law wherein this prohibition can be found.

Because Maryland, like all states, has a sex offender registry

in place, the Parole Commission was acting within its discre-

tion when it required him to register in that registry pursuant

to SORNA. This conclusion is made plain by the fact that

Kennedy currently is registered in Maryland, which should

put to rest any concern that his registration would be rejected

by the State of Maryland even though required by the U.S.

Parole Commission and SORNA.

C

Finally, Kennedy argues that the Parole Commission’s

order was unreasonable because it "violated the Tenth

14 KENNEDY v. ALLERA

Amendment by commandeering the State of Maryland to reg-

ister Mr. Kennedy in violation of its own state law." In mak-

ing this argument, Kennedy repeats the argument, rejected

above, that because he was not required to register as a sex

offender in Maryland, Maryland law prohibited him from reg-

istering. He also argues that even if it were possible for him

to register in Maryland’s sex offender registry without violat-

ing Maryland law, the special parole condition and SORNA

unconstitutionally commandeered Maryland state officials by

requiring them to register an individual they otherwise would

not have.

While it is true that in Printz v. United States, 521 U.S.

898, 935 (1997), the Supreme Court made clear that the Tenth

Amendment prohibits the federal government from comman-

deering state officers by compelling them to enforce a federal

regulatory program, Kennedy has not demonstrated that the

order requiring him to register as a condition of parole under-

takes to obligate the State of Maryland or the Sheriff of

Wicomico County to accept his registration. To the contrary,

the condition commands only Kennedy, directing him to

report to the Sheriff’s Office and register. Moreover, when, in

2004, prior to the enactment of SORNA, Kennedy attempted

to register pursuant to a directive from Officer Allera, the

Wicomico County Sheriff’s Office declined to register him

because it concluded that Maryland law did not require him

to register. While the Wicomico County Sheriff’s Office did

later, in 2008, accept Kennedy’s registration, it did not do so

because of any command in the special parole condition.

Similarly, Kennedy has not shown that SORNA "comman-

deers" the State of Maryland in violation of the Tenth Amend-

ment. While SORNA does order that "a sex offender shall

register, and keep the registration current" in each jurisdiction

with which he has contact, 42 U.S.C. § 16913(a), nowhere

does it require that the States comply with its directives.

Rather, SORNA gives the States a choice, indicating that "a

jurisdiction that fails . . . to substantially implement [SORNA]

KENNEDY v. ALLERA 15

shall not receive 10 percent of the funds that would otherwise

be allocated" to the jurisdiction for federal criminal justice

assistance. Id. § 16925(a); see also 72 Fed. Reg. at 8895

("The SORNA provisions cast as directions to jurisdictions

and their officials are, in relation to the states, only conditions

required to avoid [a] funding reduction"). Thus, while

SORNA imposes a duty on the sex offender to register, it

nowhere imposes a requirement on the State to accept such

registration. Indeed, the criminal provisions of SORNA also

recognize that a State can refuse registration inasmuch as they

allow, as an affirmative defense to a prosecution, the claim

that "uncontrollable circumstances prevented the individual

from complying." 18 U.S.C. § 2250(b)(1). Of course, if a

State elects not to participate in the implementation of

SORNA, it risks losing some funding. See 42 U.S.C.

§ 16925(a). But it is well established that conditioning federal

funding on a State’s implementation of a federal program

does not, without more, violate the Tenth Amendment. See

South Dakota v. Dole, 483 U.S. 203, 210-11 (1987).

Moreover, even if Kennedy were able to demonstrate facts

or circumstances raising the specter of an unconstitutional

commandeering, it would be the State, not him, that would be

aggrieved, and in presenting the State’s claim, Kennedy

undoubtedly would face a serious standing question, as the

government has suggested in its brief. See, e.g., United States

v. Hacker, 565 F.3d 522, 526-27 (8th Cir. 2009) (holding that

an individual has no standing to challenge SORNA on the

ground that it improperly commandeers state officials in vio-

lation of the Tenth Amendment); United States v. Shenan-

doah, 595 F.3d 151, 161-62 (3d Cir. 2010) (following

Hacker); Brooklyn Legal Servs. Corp. B v. Legal Servs.

Corp., 462 F.3d 219, 234-36 (2d Cir. 2006) (holding that an

individual does not have standing to bring a Tenth Amend-

ment claim); Medeiros v. Vincent, 431 F.3d 25, 33-36 (1st

Cir. 2005) (same); United States v. Parker, 362 F.3d 1279,

1284-85 (10th Cir. 2004) (same). But see Gillespie v. City of

Indianapolis, 185 F.3d 693, 700-04 (7th Cir. 1999) (holding

16 KENNEDY v. ALLERA

that individuals have standing to bring a Tenth Amendment

claim); Atlanta Gas Light Co. v. U.S. Dep’t of Energy, 666

F.2d 1359, 1368 n.16 (11th Cir. 1982) (same). But Kennedy

has not even established a plausible claim under the Tenth

Amendment, and we therefore need not consider the govern-

ment’s standing argument.3

We thus conclude that Kennedy has failed to demonstrate

that either the special parole condition imposed on him or

SORNA itself raises a Tenth Amendment problem.

***

Accordingly, we vacate our prior opinion in this case and,

for the reasons given herein, affirm the district court’s judg-

ment.

AFFIRMED

3

While a court may not, of course, simply assume the existence of Arti-

cle III standing, see Steel Co. v. Citizens for a Better Environment, 523

U.S. 83, 94-95 (1998), prudential standing questions may be avoided in

order to decide a case on the merits. See Nisselson v. Lernout, 469 F.3d

143, 150-51 (1st Cir. 2006), cert. denied, 127 S. Ct. 2131 (2007); Frater-

nal Order of Police v. United States, 173 F.3d 898, 904-05 (D.C. Cir.

1999); New York v. EPA, 133 F.3d 987, 992 (7th Cir. 1998); see also 13B

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 3531.15, at 346-47 (3d ed. 2008). In this case,

Kennedy claims to have been aggrieved by the special parole condition

and would find relief from this condition if we were to hold that this con-

dition violates the Tenth Amendment. On this basis, he has satisfied Arti-

cle III standing requirements. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992). Any lack of standing to bring a Tenth Amendment chal-

lenge would therefore be based on the fact that Kennedy would be seeking

to assert a claim based on rights belonging to the State, which would raise

only prudential concerns. See Hacker, 565 F.3d at 526-27.