Bacon v. Neer, No. 10–1104.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
Citation631 F.3d 875
PartiesEric BACON, Plaintiff–Appellant,v.Tom NEER, St. Charles County Sheriff; James Keathley, Colonel, Superintendent Missouri State Highway Patrol, Defendants–Appellees.
Docket NumberNo. 10–1104.
Decision Date01 February 2011

631 F.3d 875

Eric BACON, Plaintiff–Appellant,
v.
Tom NEER, St. Charles County Sheriff; James Keathley, Colonel, Superintendent Missouri State Highway Patrol, Defendants–Appellees.

No. 10–1104.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 20, 2010.Filed: Feb. 1, 2011.


[631 F.3d 876]

Gilbert Chester Sison, argued, St. Louis, MO, for appellant.Robert Edward Hoeynck, Jr., argued, St. Charles, MO, for appellee.Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.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 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.”

[631 F.3d 877]

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 ––– U.S. ––––, 129 S.Ct. 2431, 174 L.Ed.2d 229 (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 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.”

[631 F.3d 878]

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 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, ––– U.S. ––––, 130 S.Ct. 2518, 2519, 177 L.Ed.2d 64 (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 APA.3 The right-to-travel contention has been rejected by two of our sister circuits 4 and is without merit on the facts of this case because Bacon is...

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42 practice notes
  • Syngenta Seeds, Inc. v. Bunge North America, Inc., No. C 11–4074–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 26 Septiembre 2011
    ...not allowed to deliver it to a Bunge facility. 11. “An order denying a preliminary injunction is immediately appealable.” Bacon v. Neer, 631 F.3d 875, 877 (8th Cir.2011) (citing 28 U.S.C. § 1292(a)(1)). Thus, I need not consider whether to certify this decision for immediate appeal. Neverth......
  • Syngenta Seeds Inc. v. Bunge North Am. Inc., No. C 11-4074-MWB
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 26 Septiembre 2011
    ...not allowed to deliver it to a Bunge facility. 11."An order denying a preliminary injunction is immediately appealable." Bacon v. Neer, 631 F.3d 875, 877 (8th Cir. 2011) (citing 28 U.S.C. § 1292(a)(1)). Thus, I need not consider whether to certify this decision for immediate appeal. Neverth......
  • Heights Apartments, LLC v. Walz, Case No. 20-CV-2051 (NEB/BRT)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 31 Diciembre 2020
    ...violated state law. Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ; Bacon v. Neer , 631 F.3d 875, 880 (8th Cir. 2011). Pennhurst is an exception to Ex parte Young ’s exception to state sovereign immunity. Nat'l Assoc. of the Deaf v. Florid......
  • Doe v. Peterson, 8:18CV507
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • 23 Marzo 2021
    ...procedures, such as sex offender registration, unless they are sufficiently ‘punitive either in purpose or effect.’ " Bacon v. Neer , 631 F.3d 875, 877 n. 1 (8th Cir. 2011) (quoting Smith v. Doe , 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) ). The Nebraska Supreme Court, "like t......
  • Request a trial to view additional results
42 cases
  • Syngenta Seeds, Inc. v. Bunge North America, Inc., No. C 11–4074–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 26 Septiembre 2011
    ...not allowed to deliver it to a Bunge facility. 11. “An order denying a preliminary injunction is immediately appealable.” Bacon v. Neer, 631 F.3d 875, 877 (8th Cir.2011) (citing 28 U.S.C. § 1292(a)(1)). Thus, I need not consider whether to certify this decision for immediate appeal. Neverth......
  • Syngenta Seeds Inc. v. Bunge North Am. Inc., No. C 11-4074-MWB
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 26 Septiembre 2011
    ...not allowed to deliver it to a Bunge facility. 11."An order denying a preliminary injunction is immediately appealable." Bacon v. Neer, 631 F.3d 875, 877 (8th Cir. 2011) (citing 28 U.S.C. § 1292(a)(1)). Thus, I need not consider whether to certify this decision for immediate appeal. Neverth......
  • Heights Apartments, LLC v. Walz, Case No. 20-CV-2051 (NEB/BRT)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 31 Diciembre 2020
    ...violated state law. Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ; Bacon v. Neer , 631 F.3d 875, 880 (8th Cir. 2011). Pennhurst is an exception to Ex parte Young ’s exception to state sovereign immunity. Nat'l Assoc. of the Deaf v. Florid......
  • Doe v. Peterson, 8:18CV507
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • 23 Marzo 2021
    ...procedures, such as sex offender registration, unless they are sufficiently ‘punitive either in purpose or effect.’ " Bacon v. Neer , 631 F.3d 875, 877 n. 1 (8th Cir. 2011) (quoting Smith v. Doe , 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) ). The Nebraska Supreme Court, "like t......
  • Request a trial to view additional results

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