Grant Anderson v. Eric Holder, Jr. , 647 F.3d 1165 ( 2011 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 18, 2011 Decided August 16, 2011
No. 10-5097
GRANT ANDERSON,
APPELLANT
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED
STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01197)
Catherine H. Curlet, student counsel, argued the cause as
appointed amicus curiae in support of appellant. On the briefs
was Erica Hashimoto, appointed by the Court.
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.
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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 the police to publicize his status.
Anderson challenges SORA under various provisions of the
U.S. Constitution, most notably the Ex Post Facto Clause. For
the reasons set forth below, we reject his claims.
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, D.C. CODE §§ 22-4001 to -4017, a registration and
notification law similar to those enacted in each of the fifty
states, see Smith v. Doe, 538 U.S. 84, 89-90 (2003). SORA
requires District residents convicted of certain crimes to
register as sex offenders with the Court Services and Offender
Supervision Agency (CSOSA), a federal agency that also
3
administers the District’s parole and probation programs.
SORA delegated to the agency authority to adopt regulations
specifying the information offenders must submit, D.C. CODE
§ 22-4007(a), the frequency with which they must submit the
information, id. § 22-4008(a)(1), and whether they must
provide updates to CSOSA in person, id. § 22-4008(a)(3). A
sex offender who knowingly fails to register and keep his
information up to date is subject to 180 days’ imprisonment
and a $1000 fine. Id. § 22-4015(a). Repeated failure to comply
with the registration requirement may result in five years’
imprisonment and a $25,000 fine. Id. SORA also requires the
Metropolitan Police to maintain a public internet database that
provides information about sex offender registrants, id.
§ 22-4011(b)(1)(B), and permits the police to notify the public
about the registrants through “community meetings, flyers,
telephone calls, door-to-door contacts, electronic notification,
direct mailings, and media releases,” id. § 22-4011(b)(1)(A).
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,” id.
§ 22-4001(6)(D), meaning he must register as a sex offender
with CSOSA so long as he lives in the District, id.
§ 22-4002(b)(1), and he must also register with the authorities
in any other state where he relocates, works, or goes to school,
id. § 22-4014(5). On June 29, 2009, Anderson, proceeding pro
se, sued the United States and the District of Columbia,
contending that SORA violates the Ex Post Facto Clause, the
Fifth Amendment, the Eighth Amendment, the Equal
Protection Clause, and the D.C. Human Rights Act. The
district court granted the government’s motion to dismiss,
holding that Anderson failed to state a claim under federal law,
and refusing to exercise supplemental jurisdiction over his
claim under the D.C. Human Rights Act. Anderson v. Holder,
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691 F. Supp. 2d 57 (D.D.C. 2010). Anderson appealed, and we
appointed an amicus, who ably argued in his support.
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 (1997)). We conclude that, like the sex offender
registration requirement in Smith, SORA’s registration
requirement does not violate the Ex Post Facto Clause.
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
Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act of 1994, Pub. L. No.
103-322, § 170101, 108 Stat. 2038, 2042 (codified as amended
5
at 42 U.S.C. § 14071 (2000)) (conditioning certain federal
funding on the states’ adoption of sex offender registration
laws and setting minimum standards for state programs),
repealed by Pub. L. No. 109-248, § 129(a), 120 Stat. 587, 600
(2006), and the overwhelming weight of authority treats such
laws as civil and nonpunitive, see, e.g., Smith, 538 U.S. at 96
(Alaska); United States v. Hinckley, 550 F.3d 926, 936 (10th
Cir. 2008) (federal registration requirement); Virsnieks v.
Smith, 521 F.3d 707, 720 (7th Cir. 2008) (Wisconsin); Houston
v. Williams, 547 F.3d 1357, 1364 (11th Cir. 2008) (Florida);
Doe v. Bredesen, 507 F.3d 998, 1007 (6th Cir. 2007)
(Tennessee); Weems v. Little Rock Police Dep’t, 453 F.3d
1010, 1017 (8th Cir. 2006) (Arkansas); Hatton v. Bonner, 356
F.3d 955, 967 (9th Cir. 2004) (California); Doe v. Pataki, 120
F.3d 1263, 1265 (2d Cir. 1997) (New York); Hayes v. Texas,
370 F. App’x 508, 509 (5th Cir. 2010) (unpublished) (Texas);
Kirschenhunter v. Sheriff’s Office, Beauregard Parish, 165 F.
App’x 362, 363 (5th Cir. 2006) (unpublished) (Louisiana). But
see United States v. Juvenile Male, 590 F.3d 924, 927 (9th Cir.
2010) (holding that federal registration requirement was an ex
post facto law when retroactively applied to those found guilty
of sex crimes in juvenile proceedings), vacated, 131 S. Ct.
2860 (2011). We see no reason to think that the Council’s aim
with SORA was different from that of the many other
legislatures that have passed similar laws. We note that the
D.C. Court of Appeals reached the same conclusion in its
appraisal of SORA. In In re W.M., the court thought it the
“clear and unequivocal” intention of the Council to impose
only a civil and nonpunitive burden. 851 A.2d 431, 441 (D.C.
2004). Though we are “not bound by the D.C. Court of
Appeals’s interpretation of the Constitution,” Ellis v. District
of Columbia, 84 F.3d 1413, 1420 (D.C. Cir. 1996), “a federal
court should hesitate before disavowing a state supreme court’s
exposition of the purposes animating a state statute,” Allen v.
Att’y Gen. of Me., 80 F.3d 569, 575 n.6 (1st Cir. 1996); see also
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Seling v. Young, 531 U.S. 250, 264 (2001) (construing
Washington statute as civil in part because Washington
Supreme Court had reached the same conclusion); Hatton, 356
F.3d at 962 (citing California Supreme Court’s views on state
sex offender registration requirement as “[f]urther supporting a
nonpunitive interpretation of the legislature’s intent”).
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
(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. D.C. CODE § 22-4004(a). There is a thirty
day statute of limitations for judicial review of the agency’s
decisions, id. § 22-4004(a)(2)(B), but no guarantee of
court-appointed counsel, id. § 22-4004(c)(1). In Smith, the
statute’s use of an administrative agency to implement the
registration scheme’s “distinctly civil procedures” suggested
“that the legislature envisioned the Act’s implementation to be
civil and administrative,” not criminal. 538 U.S. at 96 (internal
quotation marks omitted); see also Helvering v. Mitchell, 303
U.S. 391, 402 (1938) (concluding that Congress intended to
impose a civil penalty in part because “the determination of the
facts upon which liability is based may be by an administrative
agency instead of a jury”). The same is true here.
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The amicus counters that the use of CSOSA makes SORA
punitive because the agency is involved with the
administration of criminal justice. Cf. Bailey v. Drexel
Furniture Co., 259 U.S. 20, 37 (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
Council originally codified SORA as part of Title 24 of the
D.C. Code, “Prisoners and Their Treatment,” which includes
numerous nonpunitive provisions. See, e.g., 24 D.C. CODE ch.
5 (“Insane Defendants”); id. ch. 6 (“Rehabilitation of
Alcoholics”); id. ch. 14 (“Delivery of Health Care to
8
Inmates”). SORA was later moved to Title 22 as part of a
“recodification of all the laws of the District of Columbia in
2001 that was carried out not by the Council itself but by its
Office of the General Counsel pursuant to a delegation of
general authority.” In re W.M., 851 A.2d at 442 (citing District
of Columbia Official Code, Preface, at VI (2001)). As the D.C.
Court of Appeals explained in In re W.M., “this post-enactment
administrative decision on which the Council did not even
vote . . . says nothing about the intent of the legislature.” Id.
(internal quotation marks omitted).
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 all
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 (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
9
what it considered a more reliable measure of the 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 determine 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 respect to this purpose.” Id. at 97; see also Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69 (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 recitivist sex offenders. See id. at 97. This
10
leaves us to consider SORA’s “purpose or effect” in light of the
remaining Smith factors. The amicus argues that SORA is
different and more punitive than the Alaska statute at issue in
Smith by pointing to three features of SORA that were not
present in that case: the requirement that some sex offenders
update their registrations in person, D.C. CODE § 22-4007(b);
the requirement that sex offenders register in other
jurisdictions where they relocate, work, or attend school, id.
§ 22-4014(5); and SORA’s “active notification” provision, id.
§ 22-4011(a), (b)(1)(A) (authorizing police to “affirmatively
inform[] persons or entities about sex offenders” via
“community meetings, flyers, telephone calls, door-to-door
contacts, electronic notification, direct mailings, and media
releases”).
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, 130 S. Ct. 2743, 2752 (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 (1999) (internal quotation marks omitted).
11
The amicus argues that SORA’s requirement that sex
offenders register in other states where they relocate, work, or
go to school, D.C. CODE § 22-4014(5), imposes an
“affirmative disability or restraint” that is, by its very nature,
punitive, Smith, 538 U.S. at 97. But Smith makes clear that
requiring a sex offender to register in the jurisdiction where he
lives “does not restrain activities [he] may pursue but leaves
[him] free to change jobs or residences” and is “less harsh than
the sanctions of occupational debarment,” which the Supreme
Court has held to be civil. Smith, 538 U.S. at 100. Requiring
Anderson to register in states where he is a student or employee
imposes no greater burden on him than requiring him to
register in the state where he lives. In fact, each requires the
same: Anderson must register where he is. Restraints so “minor
and indirect” are not punitive. Smith, 538 U.S. at 100.
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, 130 S. Ct.
2229, 2238 (2010). SORA’s requirement that Anderson
register in other jurisdictions is a reasonable response to this
problem, 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., 42 U.S.C. § 16913(a); CAL. PENAL CODE
§ 290.002; 730 ILL. COMP. STAT. 150/3(a-5); MD. CODE ANN.,
CRIM. PROC. § 11-704(a)(4); N.J. STAT. ANN. § 2C:7-2(c)(5),
(6); VA. CODE ANN. § 9.1-905. This belt-and-suspenders
approach makes it less likely that Anderson will be able to
avoid registration by moving from one jurisdiction to another.
12
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
means 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 punishment,” 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 (1996) (“[T]hough . . . statutes may fairly be said to serve
the purpose of deterrence, we have 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
13
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 Fifth Amendment by forcing him to
“participate in polygraph examinations and psycho-therapy
sessions,” which he argued “may be used to negate [his] claims
of innocence while seeking federal habeas corpus
proceedings.” Compl. ¶ 12. But apart from this bare assertion,
Anderson never explained his claim. His complaint does not
say that he was exposed to the threat of incrimination, that he
was compelled to testify, or that he asserted his privilege
against self-incrimination—all elements he would need to
prove for his claim to succeed. See Minnesota v. Murphy, 465
U.S. 420, 426 n.7 (1984) (observing that the Fifth Amendment
privilege only extends to a probationer if his answer could
expose him to additional punishment); Lefkowitz v.
Cunningham, 431 U.S. 801, 806 (1977) (“[T]he touchstone of
the Fifth Amendment is compulsion . . . .”); Nat’l Fed’n of Fed.
Emps. v. Greenberg, 983 F.2d 286, 291 (D.C. Cir. 1983)
(“Ordinarily, a person must invoke the privilege in order to
gain its advantage.”). Without more, the district court correctly
concluded that Anderson failed to “show[] that [he] is entitled
to relief.” FED. R. CIV. PROC. 8(a)(2); see Ashcroft v. Iqbal, 129
14
S. Ct. 1937, 1950 (2009) (instructing that a court should
dismiss a complaint “where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct”).
The amicus recognizes that Anderson failed to state a Fifth
Amendment claim, but faults the district court for not
explaining the standard for a motion to dismiss to a pro se
plaintiff and then urging him to amend his complaint. We are
unaware, however, of any authority that requires a district
court to go to such lengths, and we decline to extend the district
court’s responsibility so far in a case in which the pro se
plaintiff did not need any such help. Anderson’s filings make
clear that he understood what is needed to withstand a motion
to dismiss. Anderson began his response by citing Federal Rule
of Civil Procedure 12(b)(6) and observing that on a motion to
dismiss “a court must construe all allegations contained in the
complaint in the light most favorable to the plaintiff.”
Anderson’s Response to D.C. Mot. to Dismiss 2, No.
1:09-cv-1197 (D.D.C. Aug. 12, 2009). Anderson’s knowledge
of hornbook civil procedure is hardly surprising: he is a
“prolific filer” who has initiated numerous suits in this circuit
and others. Ibrahim v. District of Columbia, 208 F.3d 1032,
1032-33 (D.C. Cir. 2000) (describing “Jibril Ibrahim, né Grant
Anderson” as a frequent litigant).
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.
15
With no federal claims remaining in the case, the district court
also properly declined to exercise supplemental jurisdiction
over Anderson’s claim under the D.C. Human Rights Act. See
28 U.S.C. § 1367(c)(3) (“The district courts may decline to
exercise supplemental jurisdiction over a claim . . . if . . . the
district court has dismissed all claims over which it has original
jurisdiction . . . .”); Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 n.7 (1988) (“[I]n the usual case in which all
federal-law claims are eliminated before trial, the balance of
factors to be considered . . . will point toward declining to
exercise jurisdiction over the remaining state-law claims.”).
IV
The judgment of the district court is
Affirmed.