WIGGINS v. UNITED STATES OF AMERICA

Filing 16

ORDER - GRANTING DEFENDANT'S 7 MOTION TO DISMISS. The Court agrees with the Sixth Circuit and the Eastern District of Michigan that SORNA does not create a private cause of action. The language of SORNA does not provide an express private c ause of action. Furthermore, there is no indication in the statute that Congress had any intention of creating an implied private cause of action. Instead, SORNA requires jurisdictions (i.e., states, territories, and the District of Columbia) to c reate a sex offender registry system and to provide a criminal penalty for the failure of sex offenders to comply with the registration requirements. Because SORNA does not provide a private cause of action, and because Wiggins has not presented a claim that is ripe, the Motion to Dismiss must be granted. For the reasons stated above, the Government's Motion to Dismiss is GRANTED (Filing No. 7 ). This action is dismissed for lack of subject matter jurisdiction. Final judgment will issue under separate order. (See Order.) Signed by Judge Tanya Walton Pratt on 10/10/2019. (NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JARED M. WIGGINS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 1:18-cv-03492-TWP-DLP

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
This matter is before the Court on Defendant the United States of America’s (the
“Government”) Motion to Dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(1)
(Filing No. 7). Plaintiff Jared M. Wiggins (“Wiggins”) initiated this civil action by filing a Petition
to Reduce Period of Sex Offender Registration for Clean Record Under 34 U.S.C. 20915(b).
(Filing No. 1.)

The Government seeks dismissal arguing this Court lacks subject matter

jurisdiction. For the following reasons, the Court grants the Government’s Motion to Dismiss.
I.

BACKGROUND

The following facts are not necessarily objectively true, but as required when reviewing a
motion to dismiss, the Court accepts as true all factual allegations in the complaint and draws all
inferences in favor of Wiggins as the non-moving party. See Bielanski v. County of Kane, 550
F.3d 632, 633 (7th Cir. 2008).
Wiggins resides and works in Delaware County, Indiana. He was convicted on April 4,
2006, of violating Article 92 of the Uniform Code of Military Justice (“UCMJ”) for knowingly
and wrongfully possessing and transferring pornographic matter and for violating UCMJ Article
134 for wrongfully and knowingly possessing one or more visual depictions involving the use of

a minor engaging in sexually explicit conduct, in United States v. Jared M. Wiggins, Case Number
0092-2005-CID847-15196-6D4D in the United States Army, Fifth Judicial Circuit. Because of
these convictions, Wiggins is required under both federal and state law to register as a sex offender
(Filing No. 9 at 1).
As a resident of Indiana, Wiggins is deemed a sex offender pursuant to Indiana Code § 118-8-4.5. Under Indiana Code § 11-8-8-7, he is required, as a sex offender residing in Indiana, to
register as a sex offender. If Wiggins fails to register, he could be prosecuted under Indiana Code
§ 11-8-8-17, a Level 6 felony for the offense of failure to register as a sex offender. (Filing No. 9
at 2.)
Since his April 4, 2006 conviction, Wiggins has not been convicted of any offense for
which imprisonment of more than one year may be imposed and he has not been convicted of any
other sex offense. Additionally, Wiggins has completed all terms of his sentence and on March 12,
2007, successfully completed the Sex Offenders Education Program at the Regional Corrections
Facility at Fort Louis, Washington. Wiggins is employed and lives a law-abiding and productive
life. Id.
On November 9, 2018, Wiggins filed the instant “Petition to Reduce Period of Sex
Offender Registration for Clean Record Under 34 U.S.C. 20915(b),” asking this Court to reduce
his sex offender registration period (Filing No. 1). Title 34 U.S.C. § 20915(b) provides that a tier
1 sex offender who maintains a clean record for a ten year period and complies with all of the other
requirements “shall” have his registration period reduced by five years. (Filing No. 10 at 1-2).
Wiggins asserts that he is a tier 1 sex offender, required by the law enforcement officials in
Delaware County, Indiana to register for fifteen years. Because he is in compliance with Section

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20915(b), Wiggins believes his registration should be reduced by five years and he will no longer
be required to register as a sex offender. Id.
On April 2, 2019, the Government filed the instant Motion seeking dismissal of Wiggins
Complaint, based on a lack of subject matter jurisdiction because of ripeness issues and because
there is no private right of action under Section 20915(b) (Filing No. 7). Thereafter, Wiggins filed
an Amended Petition to assert allegations that he was required to register as a sex offender and his
failure to do so could result in felony prosecution (Filing No. 9). After Wiggins filed his Amended
Petition, the parties completed briefing the Motion.
II.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(1) challenges the court’s subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1). The burden of proof is on the plaintiff, the party asserting jurisdiction.
United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on
other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012) (en banc). “The
plaintiff has the burden of supporting the jurisdictional allegations of the complaint by competent
proof.” Int’l Harvester Co. v. Deere & Co., 623 F.2d 1207, 1210 (7th Cir. 1980). “In deciding
whether the plaintiff has carried this burden, the court must look to the state of affairs as of the
filing of the complaint; a justiciable controversy must have existed at that time.” Id.
“When ruling on a motion to dismiss for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1), the district court must accept as true all well-pleaded factual
allegations, and draw reasonable inferences in favor of the plaintiff.” Ezekiel v. Michel, 66 F.3d
894, 897 (7th Cir. 1995) (citation omitted). Furthermore, “[t]he district court may properly look
beyond the jurisdictional allegations of the complaint and view whatever evidence has been

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submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Id. (citation
and quotation marks omitted).
III. DISCUSSION
The Government argues that dismissal is appropriate for two reasons. First, Wiggins has
not presented a claim that is ripe, and second, there is no private right of action created by 34
U.S.C. § 20915(b), the statute upon which Wiggins bases his claim.
A “claim is not ripe for adjudication if it rests upon contingent future events that may not
occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300
(1998) (internal citation and quotation marks omitted). In support of their lack of ripeness
argument, the Government asserts that Wiggins’ Petition does not arise from any concrete dispute
because there is no allegation that he is charged with or threatened to be charged with failing to
register as an offender under the Sex Offender Registration and Notification Act (“SORNA”) or
any other federal or state law. There is no allegation that Wiggins will likely face any hardship
without judicial intervention, therefore, there is no controversy for the Court to adjudicate.
The Government notes that Wiggins did not allege that he has ever been subject to the
jurisdiction of this Court, and he did not allege that he has been subject to any criminal prosecution,
investigation, or other proceeding based on a failure to register as a sex offender. Relying on Wis.
Cent., Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008), the Government asserts that, “when it
implicates the possibility of this Court issuing an advisory opinion,” a claim of unripeness “is a
question of subject matter jurisdiction.” In its view, Wiggins is simply asking the Court for a
declaration pursuant to Section 20915(b), 1 absolving him of his sex offender registration
requirement, but this would be an advisory opinion on an unripe issue.

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34 U.S.C. § 20915(b) is part of SORNA.

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Regarding their second argument, the Government contends, like the issue of unripeness,
“a federal cause of action” is a “general prerequisite” to subject matter jurisdiction in federal court.
Int’l Union of Operating Eng’rs, Local 150 v. Ward, 563 F.3d 276, 278 (7th Cir. 2009). “[W]hen
the basis of the action is a federal statute, a federal cause of action must exist as well for a federal
court to hear a given claim; the general grant of federal question jurisdiction contained in § 1331,
without a federal cause of action, is not enough.” Id. at 281. Accordingly, Wiggins’ Petition
should be dismissed because Section 20915(b) does not provide a cause of action.
“An express federal cause of action states, in so many words, that the law permits a
claimant to bring a claim in federal court.” Id. at 283. Section 20915(b) does not contain any
language expressly permitting a claimant to bring a claim in federal court. The statute says only
that the “registration period shall be reduced” but not that a registrant may file a petition or
complaint seeking a court order to reduce it. 34 U.S.C. § 20915(b)(1). Thus, the Government
asserts, the statute does not create an express cause of action in federal court. Further, the statute
does not create an implied cause of action because the language of the statute does not suggest any
intention of Congress to create a private remedy for registrants.
The Government suggests that the appropriate venue for Wiggins to seek his relief is in
state court because sex offender registration requirements are determined and overseen by state
officials. He alternatively could bring a civil action against a government authority if such
authority were to improperly order him to register. He could “lodge a pre-enforcement civil action
challenging SORNA’s application to him, assuming he can demonstrate some ‘credible threat of
prosecution’ if he fails to comply with the law (though again, he has not alleged as much in his
Petition).” (Filing No. 8 at 8.) “[I]f federal or state authorities did prosecute Mr. Wiggins for an
alleged failure to register, he could raise Section 20915(b) as a defense to that charge.” Id.

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The Government points to the cases of United States v. Studeny, 2019 U.S. Dist. LEXIS
28536 (W.D. Wash. Feb. 22, 2019) and United States v. McGrath, 2017 U.S. Dist. LEXIS 208390
(M.D. La. Dec. 12, 2017) to support its argument that the Court should dismiss this case because
of a lack of jurisdiction. In each of those cases, the court concluded that SORNA does not provide
jurisdiction to federal courts to reduce the registration requirement of sex offenders. The
Government “respectfully requests that the Court dismiss [Wiggins’] Petition for lack of
jurisdiction and allow him to pursue the relief he is seeking in an appropriate forum.” (Filing No.
8 at 3.)
Responding to the Motion to Dismiss, Wiggins asserts,
Mr. Wiggins respectfully contends that his requested relief is ripe for adjudication
in that he is required by law enforcement to register as a sex offender in the county
in which he resides and is employed. Mr. Wiggins believes that his eligibility for
an early release from the registration requirements as set forth in 34 U.S.C.
20915(b) establishes both a live dispute and a federal question.
(Filing No. 10 at 1.) Wiggins argues that he has satisfied the statutory requirements for a reduction
to the registration requirements under SORNA. He believes that his request is ripe even though
he is not currently facing any charges or allegations for failing to register, and his claim “became
ripe for a judicial resolution once he asserted that he met all of the requirements of 34 U.S.C.
[20]915(b).” Id. at 2. Moreover, “Section 20915(b) appears to provide a cause of action and relief
for a sex offender who meets all of the statute’s requirements.” Id.
In its Reply Brief, the Government points out that Wiggins provided no legal authority for
his perfunctory argument, and his simple disagreement and conclusory statements that his claim
is ripe and there appears to be a federal cause of action are not enough to survive dismissal.
Wiggins’ claim is not ripe, “and indeed [he] has conceded that ‘he is not currently facing any

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charges or allegations for failing to register’ as a sex offender. ECF No. 10 at 2.” (Filing No. 11
at 1.)
Although Wiggins filed an “Amended Petition” after the Motion to Dismiss was filed, the
same deficiencies exist in the Amended Petition, the Court considers the Motion to Dismiss
directed at the Amended Petition. See Effect of an Amended Pleading, 6 Fed. Prac. & Proc. Civ.
§ 1476 (3d ed. 2019) (“If some of the defects raised in the original motion remain in the new
pleading, the court simply may consider the motion as being addressed to the amended pleading.”).
Upon review of the parties’ arguments, the pleadings, and the statute at issue, the Court is
persuaded that this case must be dismissed because there is no private right of action under
SORNA, and there is no ripe claim presented in Wiggins’ Petition or Amended Petition.
Wiggins does not allege that he has been subject to any criminal prosecution, investigation,
or other proceeding based on a failure to register as a sex offender. There is no allegation that he
is charged with or threatened to be charged with failing to register as an offender under SORNA
or any other federal or state law. Wiggins acknowledges that “he is not currently facing any
charges or allegations for failing to register.” Therefore, he has failed to present a claim that is
ripe for adjudication by this Court.
Concerning the issue of the lack of a private cause of action, the United States Supreme
Court has explained,
[J]urisdiction is a question of whether a federal court has the power, under the
Constitution or laws of the United States, to hear a case . . . ; cause of action is a
question of whether a particular plaintiff is a member of the class of litigants that
may, as a matter of law, appropriately invoke the power of the court.
Davis v. Passman, 442 U.S. 228, 239 n.18 (1979) (emphasis in original). “Whether [a plaintiff]
has asserted a cause of action, however, depends not on the quality or extent of her injury, but on

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whether the class of litigants of which [plaintiff] is a member may use the courts to enforce the
right at issue.” Id. The Seventh Circuit further explained,
[W]hen the basis of the action is a federal statute, a federal cause of action must
exist as well for a federal court to hear a given claim; the general grant of federal
question jurisdiction contained in § 1331, without a federal cause of action, is not
enough. As the Supreme Court has said: The threshold question clearly is whether
the Act . . . creates a cause of action whereby a private party . . . can enforce duties
and obligations imposed by the Act.
Ward, 563 F.3d at 281–82 (internal citations and quotation marks omitted).
The Court has been able to find only two other court decisions directly stating whether
SORNA creates a private cause of action. In both decisions, the court declared that SORNA does
not provide for a private right of action. See Maben v. Terhune, 2016 U.S. App. LEXIS 23904, at
*9 (6th Cir. Aug. 19, 2016) (“Because SORNA does not provide a private cause of action,
[plaintiff’s] allegations concerning alleged violations of § 16901 failed to state a claim against the
defendants.”); Maben v. Terhune, 2015 U.S. Dist. LEXIS 34262, at *13–14 (E.D. Mich. Jan. 30,
2015) (“SORNA itself provides no private cause of action. Instead, the Act requires each
jurisdiction to create a registry system and to provide a criminal penalty . . . for the failure of a sex
offender to comply with the requirements.”).
The Court agrees with the Sixth Circuit and the Eastern District of Michigan that SORNA
does not create a private cause of action. The language of SORNA does not provide an express
private cause of action. Furthermore, there is no indication in the statute that Congress had any
intention of creating an implied private cause of action. Instead, SORNA requires jurisdictions
(i.e., states, territories, and the District of Columbia) to create a sex offender registry system and
to provide a criminal penalty for the failure of sex offenders to comply with the registration
requirements. Because SORNA does not provide a private cause of action, and because Wiggins
has not presented a claim that is ripe, the Motion to Dismiss must be granted.

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I.

CONCLUSION

For the reasons stated above, the Government’s Motion to Dismiss is GRANTED (Filing
No. 7). This action is dismissed for lack of subject matter jurisdiction. Final judgment will issue
under separate order.
SO ORDERED.
Date: 10/10/2019

DISTRIBUTION:
Jeffrey P. Terrill
ARNOLD TERRILL, P.C.
[e-mail]
Lara K. Langeneckert
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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