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.