Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding D.C. No. 2:08-cv-00822-JCM-PAL
The opinion of the court was delivered by: Trott, Circuit Judge:
Argued and Submitted December 7, 2011-San Francisco, California
Before: Stephen S. Trott and Carlos T. Bea, Circuit Judges, and William H. Stafford, Senior District Judge.*fn1
The State of Nevada appeals the district court's permanent injunction prohibiting the retroactive application of two Nevada laws: Assembly Bill 579, expanding the scope of sex offender registration and notification requirements, and Senate Bill 471, imposing, inter alia, residency and movement restrictions on certain sex offenders. The district court permanently enjoined retroactive application of both bills on the grounds that they violated the Ex Post Facto Clause of the United States Constitution, the Contract Clause of the United States Constitution, the Double Jeopardy Clause of the Fifth Amendment, and the Due Process Clause of the Fourteenth Amendment. With respect to Assembly Bill 579, we hold that its retroactive application is constitutionally sound, and we reverse. With respect to Senate Bill 471, we conclude that our consideration of its disputed provisions was mooted by the State of Nevada's authoritative judicial admission that - regardless of the existence of the injunction - the State will not retroactively impose residency and movement restrictions. Because the State's concession moots its own appeal, we remand to the district court to consider vacating its Order as to Senate Bill 471 in favor of a binding consent decree. But if no consent decree can be negotiated, our dismissal of the State's appeal will leave the district court's injunction in vigor.
In July 2007, the State of Nevada passed into law two statutes ("Revised Laws") imposing various requirements on individuals convicted of sexual offenses, Assembly Bill 579 ("AB 579") and Senate Bill 471 ("SB 471").
Nevada's AB 579 is best understood against the backdrop of the federal Sex Offender Registration and Notification Act ("SORNA"), enacted as a section of the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"). Pub. L. No. 109-248 (2006). SORNA encourages state governments, U.S. territories, and federally recognized Indian tribes to adopt a standardized sex offender registration and notification regime. 42 U.S.C. § 16912. It prescribes detailed registration and notification requirements to be adopted by each jurisdiction. To encourage implementation of the scheme, SORNA reduces federal law enforcement funds to jurisdictions that fail to adopt it, id. § 16925, and authorizes dispensation of grants to offset the cost of implementation, id. § 16926. SORNA also created the "Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking ("SMART Office") within the Department of Justice. Id. § 16945. The SMART Office assists jurisdictions with implementation of SORNA's registration and notification program and monitors compliance.
The State of Nevada passed AB 579 into law on June 13, 2007 to bring Nevada into compliance with SORNA. The law replaced Nevada's existing registration requirements with the scheme laid out in SORNA. The central innovation of SORNA and AB 579 is a classification system for sex offenders that places them into one of three risk tiers based solely on their crime of conviction. Registration and notification requirements are then keyed to an offender's tier classification. Largely using the language of SORNA, AB 579 also (1) expands the category of individuals required to register, (2) expands the time period during which sex offenders are subject to registration requirements, (3) requires sex offenders to register in person, and (4) obliges law enforcement actively to provide notice of the status of certain registrants. The SMART Office determined that after passage of AB 579 Nevada had "substantially implemented" SORNA requirements.*fn2
AB 579 goes beyond SORNA in its requirement that law enforcement provide public notice of the status of certain sex offenders. For example, SORNA requires that an appropriate official provide notice of an individual's sex offender status to "each school and public housing agency" in the area where a sex offender resides. Id. § 16921(b)(2). Adding to this mandate, AB 579 requires law enforcement also to provide notification to youth organizations and religious organizations. AB 579 § 29(2). Additionally, for Tier III offenders (the most serious offenders), AB 579 obligates law enforcement to provide updated status information to "members of the public who are likely to encounter the offender." Id. § 29(2)(a)(4).
Nevada's governor signed SB 471 into law the day after he signed AB 579, and the relevant provisions went into effect on October 1, 2007. In the provisions at issue in this action, SB 471 requires Nevada courts to include movement and residency restrictions in the term of probation, parole, or lifetime supervision imposed by a court upon individuals convicted of a sexual offense.*fn3 The law commands that sex offenders placed on lifetime supervision may not "knowingly be within 500 feet of any place" or reside anywhere "located within 1,000 feet of any place" that is "designed primarily for use by or for children." SB 471 §§ 8(3), (4). Depending on their crime of conviction, parolees and probationers who are Tier III offenders are subject also to the movement restriction and/or the residency restriction. See id. §§ 2(1)(m), (2)(a) (pertaining to probation and suspended sentences); id. §§ 9(1)(k)(1), 10(1)(a) (pertaining to parole). Although SB 471 contains several other provisions, Plaintiffs' Amended Complaint challenged only the provisions of SB 471 imposing movement and residency restrictions and our decision is limited to those requirements.*fn4
The American Civil Liberties Union of Nevada ("ACLU"), together with several unnamed Does, all individuals convicted of sexual offenses (together, "Plaintiffs"), brought a civil action challenging both facially and as applied the retroactive application of AB 579 and SB 471. They alleged that retroactive application of the new laws would violate a litany of state and federal constitutional provisions, and they requested declarative and injunctive relief. The complaint named as defendants Nevada's Attorney General, several officials in Nevada's Department of Public Safety (responsible for Nevada's parole and probation services), and various local law enforcement officials, all in their official capacity.
On June 30, 2008, United States District Court Judge James
C. Mahan, ruling from the bench, granted a preliminary injunction against retroactive application of both laws. After the court issued the preliminary injunction, Plaintiffs agreed to a stipulation with the local law enforcement defendants that dismissed them from the case. The stipulation specified that the dismissal was premised on the condition that the dismissed defendants would abide by the preliminary injunction and "any other injunction or declarative relief granted" by the court.
On September 10, 2008, Judge Mahan issued a permanent injunction and ordered the Plaintiffs to draft an order granting the injunction. On October 7th, Judge Mahan signed the Plaintiffs' order, which enjoined retroactive application of both laws on the federal constitutional grounds that their application to offenders convicted before the dates the two laws became effective was a violation of procedural due process, the Ex Post Facto Clause and the Double Jeopardy Clause. The only discernable reasoning articulated by the court for its decision, under the pressure of an expedited schedule, was that
It is as though the legislature passes a law that says anyone who is ever convicted of burglary must now serve an additional five years in prison no matter when he or she was convicted regardless of the fact that they've been law-abiding citizens since their release from prison. That's not fair.
The court also relied on "the Contracts clauses of the U.S. and Nevada Constitutions," but it did so without analysis or explanation. The remaining defendants (together "the State" or "Nevada") now appeal that decision (Appeal No. 08-17471).
After issuing the permanent injunction, the district court awarded Plaintiffs $145,823.50 in attorneys' fees as the prevailing party under 42 U.S.C. § 1988(b). The State did not appeal the award of attorneys' fees, but instead it moved the court to stay the payment pending their appeal on the merits pursuant to Federal Rule of Civil Procedure 62(d). The court denied the State's request for a stay, prompting the State to file an appeal of that order (Appeal No. 09-16008), which was consolidated with the State's appeal of the permanent injunction.
II JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. The district court's grant of injunctive relief "involves factual, legal, and discretionary components." Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). We review the district court's legal conclusions de novo, its factual findings for clear error, and the scope of relief for abuse of discretion. Id. The district court's decision to grant or deny a stay is reviewed for abuse of discretion. In re Combined Metals Reduction Co., 557 F.2d 179, 193 (9th Cir. 1977).
1. Ex Post Facto and Double Jeopardy Clause
 The Ex Post Facto Clause of the Constitution prohibits our state and federal governments from retroactively imposing additional punishment for commission of a criminal offense. U.S. Const. art. I, §§ 9, cl. 3. The Double Jeopardy Clause similarly prohibits subjecting a person to jeopardy of multiple punishments for the same criminal act. U.S. Const. amend. V. Under both constitutional clauses, courts apply the identical two-step test to determine whether a newly enacted legislative scheme constitutes an additional form of punishment. Russell v. Gregoire, 124 F.3d 1079, 1086 n.6 (9th Cir. 1997) (holding that Double Jeopardy Clause determination is analogous to Ex Post Facto Clause determination); see Hatton v. Bonner, 356 F.3d 955, 961 (9th Cir. 2004).
 The first step of the inquiry requires courts to determine whether the legislature intended to impose a criminal punishment or whether its intent was to enact a non-punitive regulatory scheme. Smith v. Doe, 538 U.S. 84, 92 (2003). If the legislature did intend to impose a criminal punishment, that is the end of the inquiry - the law may not be applied retroactively. Id. However, if the legislature's intent was to create a civil regulatory regime, we must move to the second step of the inquiry. There, the issue is whether the law is "so punitive either in purpose or effect as to negate the State's intention to deem it civil." Id. (internal quotation marks and alteration omitted).
The Supreme Court held in Smith v. Doe that Alaska's sex offender registration and notification scheme did not constitute unconstitutional retroactive punishment. Id. at 105-06. Following the Court's guidance in Smith, we upheld the retroactive application of a California sex offender registration statute, which contained several provisions that differ from the Alaska statute, Hatton, 356 F.3d at 967, and we follow that guidance here.
In Hatton, the state law we upheld was not enacted pursuant to SORNA and we have not explicitly ruled on the constitutionality of retroactive application of SORNA-inspired requirements. Many of our sister circuits, however, have considered this issue. Unanimously they have concluded that retroactive imposition of SORNA requirements is constitutional.*fn5 Because Nevada's version of SORNA does not contain any registration provision that materially distinguishes it from Smith, we join them in concluding that the requirements of AB 579 do not constitute retroactive punishment in violation of the Ex Post Facto Clause or Double Jeopardy Clause.
The first inquiry is whether the legislature " 'indicated either expressly or impliedly a preference for one label or another' " - that is, civil or criminal. Smith, 538 U.S. at 93 (quoting Hudson v. United States, 522 U.S. 93, 99 (1997)).
This issue is "one of statutory construction," Seling v. Young, 531 U.S. 250, 261 (2001), that looks to the "statute's text and its structure to determine the legislative objective," Smith, 538 U.S. at 92. We review this question of statutory interpretation de novo. Ileto v. Glock, Inc., 565 F.3d 1126, 1131 (9th Cir. 2009).
 The Legislative Counsel's Digest prefacing AB 579 states that its purpose is to further the public safety goals of the federal Adam Walsh Act. AB 579, 1; see also Nevadans for Prot. Prop. Rights, Inc. v. Heller, 141 P.3d 1235, 1246 (Nev. 2006) (relying upon the Legislative Counsel's Digest to determine legislative intent). The preface explains that AB 579 was enacted "[i]n furtherance of [the] purpose" of the Adam Walsh Act, which it recognizes was to "protect the public by establishing a comprehensive national system for the registration of sex offenders . . . ." AB 579, 1. The preface's characterization of the United States Congress's intent in passing SORNA is apt. SORNA states on its face that its purpose is to "protect the public from sex offenders and offenders against children." 42 U.S.C. § 16901. Congress was motivated by the desire to close gaps in jurisdictions' sex ...