                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1159
                                   ___________

Students for Sensible Drug              *
Policy Foundation, on behalf            *
of itself and its members;              *
Kraig Selken; Nathan Bush;              *
Alex Schwab, on behalf of               *
themselves and all other                *
similarly situated individuals,         *
                                        *
             Appellants,                * Appeal from the United States
                                        * District Court for the
      v.                                * District of South Dakota.
                                        *
Margaret Spellings, Secretary           *
of the United States Department         *
of Education, in her official           *
capacity,                               *
                                        *
          Appellee.                     *
__________________                      *
                                        *
Protestants for the Common              *
Good, and United Church of              *
Christ, Justice and Witness             *
Ministries,                             *
                                        *
             Amici Curiae.              *
                                   ___________

                              Submitted: November 14, 2007
                                 Filed: April 29, 2008
                                  ___________
Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.
                          ___________

BENTON, Circuit Judge.


        Students for Sensible Drug Policy Foundation (“Students”) sued for an
injunction and a declaratory judgment that 20 U.S.C. § 1091(r) is unconstitutional
because it violates the Fifth and Eighth Amendments to the United States Constitution.
The district court1 dismissed the complaint for failure to state a claim upon which
relief could be granted. Students for Sensible Drug Policy Found. v. Spellings, 460
F. Supp. 2d 1093, 1105 (D.S.D. 2006). Students argue the district court erred in
dismissing their Fifth Amendment claim because section 1091(r) violates the Double
Jeopardy Clause. Specifically, they contend the court erred in not considering the full
legislative history of section 1091(r), which shows a purpose to impose a second
criminal punishment. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

      20 U.S.C. § 1091(r) provides:

      (r) Suspension of eligibility for drug-related offenses

          (1) In general

          A student who is convicted of any offense under any Federal or State
          law involving the possession or sale of a controlled substance for
          conduct that occurred during a period of enrollment for which the
          student was receiving any grant, loan, or work assistance under this
          subchapter and part C of subchapter I of chapter 34 of Title 42 shall not
          be eligible to receive any grant, loan, or work assistance under this
          subchapter and part C of subchapter I of chapter 34 of Title 42 from the


      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

                                            -2-
date of that conviction for the period of time specified in the following
table:

If convicted of an offense involving:

The possession of a
controlled substance:                   Ineligibility period is:
First offense                              1 year
Second offense                             2 years
Third offense                              Indefinite.

The sale of a controlled
substance:                              Ineligibility period is:
First offense                              2 years
Second offense                             Indefinite.

(2) Rehabilitation

A student whose eligibility has been suspended under paragraph (1)
may resume eligibility before the end of the ineligibility period
determined under such paragraph if--

     (A) the student satisfactorily completes a drug rehabilitation
     program that--

        (i) complies with such criteria as the Secretary shall prescribe
        in regulations for purposes of this paragraph; and

        (ii) includes two unannounced drug tests; or

     (B) the conviction is reversed, set aside, or otherwise rendered
     nugatory.

(3) Definitions

In this subsection, the term “controlled substance” has the meaning
given the term in section 802(6) of Title 21.


                                  -3-
       This court reviews de novo the grant of a motion to dismiss, “taking all facts
alleged in the complaint as true.” Koehler v. Brody, 483 F.3d 590, 596 (8th Cir.
2007). “A motion to dismiss should be granted if ‘it appears beyond doubt that the
plaintiff can prove no set of facts which would entitle him to relief.’” Id., quoting
Knapp v. Hanson, 183 F.3d 786, 788 (8th Cir. 1999).

      A double jeopardy claim is a legal question that this court reviews de novo.
Morse v. Comm’r of Internal Revenue Serv., 419 F.3d 829, 834 (8th Cir. 2005). The
Clause provides: “nor shall any person be subject to the same offence to be twice put
in jeopardy of life or limb.” U.S. Const. amend. V. It protects against the
“imposition of multiple criminal punishments for the same offense, and then only
when such occurs in successive proceedings.” Hudson v. United States, 522 U.S. 93,
99 (1997) (emphasis in original) (internal quotations and citations omitted); Morse,
419 F.3d at 834-35.

       Determining whether a particular punishment is criminal or civil is initially a
question of statutory construction. Hudson, 522 U.S. at 99. This court must first ask
“whether the legislature, ‘in establishing the penalizing mechanism, indicated either
expressly or impliedly a preference for one label or the other.’” Id., quoting United
States v. Ward, 448 U.S. 242, 248 (1980). Even if the legislature indicates the intent
to establish a civil penalty, a court must still inquire “whether the statutory scheme
was so punitive either in purpose or effect as to transform what was clearly intended
as a civil remedy into a criminal penalty.” United States v. Lippert, 148 F.3d 974, 976
(8th Cir. 1998), citing Hudson, 522 U.S. at 99. Both inquiries require evaluation of
the statute on its face. Lippert, 148 F.3d at 976. “[O]nly the clearest proof will
suffice to override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty.” Id., quoting Hudson, 522 U.S. at 100.

       Regarding the first step, section 1091(r) does not expressly state whether it is
a civil remedy or a criminal penalty. The district court correctly noted the section
speaks in terms of “suspension of eligibility,” not in terms of “penalty” or

                                         -4-
“punishment.” Eligibility is determined by an administrative agency, which is “prima
facie evidence that Congress intended to provide for a civil sanction.” Hudson, 522
U.S. at 103; Morse, 419 F.3d at 835. A student has the opportunity to resume
eligibility upon completion of a drug rehabilitation program. And the section was
enacted as part of the Higher Education Amendments of 1998, which were primarily
designed to increase access to college and make it more affordable. 144 Cong. Rec.
H9155 (1998) (floor statements of Rep. Peterson). Nothing on the face of the statute
suggests that Congress intended to create anything other than a civil remedy. Smith
v. Doe, 538 U.S. 84, 93 (2003), citing Kansas v. Hendricks, 521 U.S. 346, 361
(1997).

       Students contend that the primary purpose of section 1091(r) is deterrence,
relying on: (1) its House committee report, which says that section 1091(r) will “serve
as a deterrent to prevent drug offenses,” H.R. Report No. 109-231, at 206 (2005); and
(2) several floor statements (specifically those, over a course of several years, by
Representative Gerald B. H. Solomon who proposed several bills nearly identical to
section 1091(r), although none was enacted). These, though, are not the “clearest
proof” necessary to override legislative intent.

       “[A]ll civil penalties have some deterrent effect. . . . If a sanction must be
‘solely’ remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy
Clause, then no civil penalties are beyond the scope of the Clause.” Hudson, 522 U.S.
at 102; see also Smith, 538 U.S. at 95 (“both criminal and civil sanctions may be
labeled ‘penalties’”). Section 1091(r) serves several non-punitive goals, such as
rehabilitation, school safety, a drug-free society, and ensuring tax dollars are spent on
students who obey the laws. 144 Cong. Rec. H2580 (1998) (floor statements of Rep.
Mark Souder, author of amendment enacting section 1091(r))); 144 Cong. Rec.
H2869 (1998) (floor statements of Rep. Solomon). These goals are “plainly more
remedial than punitive.” Smith, 538 U.S. at 94. “Where, as here, the rational
connection to nonpunitive ends remains as a rationale for enacting this provision, a
court should not reject all those alternatives . . . save that one which might require

                                          -5-
invalidation of the statute.” Jensen v. Heckler, 766 F.2d 383, 386 (8th Cir. 1985) (per
curiam) (internal quotation marks omitted).

      Students also ask this court to rely on the legislative history of the Anti-Drug
Abuse Act of 1988, which grants state and federal judges discretion to suspend federal
benefits when sentencing an individual convicted of a drug offense. 21 U.S.C. §
862(a)-(c). This history is not directly relevant to the legislative purpose of section
1091(r) because similarity between civil and criminal sanctions does not make both
of them criminal. See Smith, 538 U.S. at 101; Hendricks, 521 U.S. at 364.

      Moving to the second step, in determining whether the statutory scheme is so
punitive in purpose or effect, this court looks at several factors:

      (1) “[w]hether the sanction involves an affirmative disability or
      restraint”; (2) “whether it has historically been regarded as a
      punishment”; (3) “whether it comes into play only on a finding of
      scienter”; (4) “whether its operation will promote the traditional aims of
      punishment – retribution and deterrence”; (5) “whether the behavior to
      which it applies is already a crime”; (6) “whether an alternative purpose
      to which it may rationally be connected is assignable for it”; and (7)
      “whether it appears excessive in relation to the alternative purpose
      assigned.”

Hudson, 522 U.S. at 99-100 (emphasis in original), quoting Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). No one factor is controlling.
Hudson, 522 U.S. at 101.

       In terms of these factors, the statutory scheme is not so punitive in purpose or
effect as to transform it into a criminal penalty. First, the sanction does not involve
an affirmative disability or restraint. While students are denied Title IV financial aid
for a specified period, “this is ‘certainly nothing approaching the ‘infamous
punishment’ of imprisonment.’” Hudson, 522 U.S. at 104, quoting Flemming v.
Nestor, 363 U.S. 603, 617 (1960); see also Hendricks, 521 U.S. at 363, 369. Second,

                                          -6-
“the denial of Title IV aid does not constitute punishment.” Selective Serv. Sys., v.
Minn. Public Interest Research Group, 468 U.S. 841, 847 n.3 (1984). Students are
not deprived permanently of Title IV benefits. See id. at 853 (“A statute that leaves
open perpetually the possibility of qualifying for aid does not fall within the historical
meaning of forbidden legislative punishment.”). Third, the sanction does not come
into play only on a finding of scienter. The statute says all students who were
convicted for possession or sale of controlled substances are ineligible for aid,
regardless of the student’s state of mind. “The absence of such a requirement here is
evidence that . . . the statute is not intended to be retributive.” Hendricks, 521 U.S.
at 362. Fourth, though the statute will deter other students, this alone “is insufficient
to render a sanction criminal, as deterrence ‘may serve civil as well as criminal
goals.’” Hudson, 522 U.S. at 105, quoting United States v. Ursery, 518 U.S. 267, 292
(1996). Fifth, the sanction applies to behavior that is already a crime in that it requires
a conviction before a student is deemed ineligible. However, this is insufficient to
render the sanctions criminally punitive, especially in the double jeopardy context.
Hudson, 522 U.S. at 105; Hendricks, 521 U.S. at 362 (“Thus, the fact that the Act
may be ‘tied to criminal activity’ is ‘insufficient to render the statut[e] punitive.’”).
Sixth, although section 1091(r) is meant to deter other students from possessing or
selling drugs on campus, it also encourages rehabilitation, school safety, a drug-free
society, and ensuring tax dollars are spent on students who obey the laws. The statute
is rationally related to these alternative purposes. “The Act’s rational connection to
a nonpunitive purpose is a ‘[m]ost significant’ factor in our determination that the
statute’s effects are not punitive.” Smith, 538 U.S. at 102, quoting Ursery, 518 U.S.
at 290. And seventh, the statute is not excessive in relation to these alternative
purposes.

      The judgment of the district court is affirmed.

                         ______________________________




                                           -7-
