In 1999, Anthony Ross was convicted in 1999 of sexual assault, a misdemeanor offense. In 2009 he moved from D.C. to Ohio. In 2010 he was indicted for failing to register with local authorities pursuant to the Sex Offender Registration and Notification Act (“SORNA”), which criminalizes the offense of “travel[ing] in interstate or foreign commerce,” and “knowingly fail[ing]” to update [the] registration when required by the act to do so. 18 U.S.C. § 2250(a).
Ross unsuccessfully moved to dismiss the indictment and, after entry of a conditional guilty plea, appealed. He advanced two grounds, the first based on the fact that his conviction preceded SORNA’s enactment. Ross contended that SORNA did not apply to those whose alleged conduct preceded the new law’s enactment because the Attorney General had bypassed the “notice and comment” requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., in defining what pre-enactment conduct ran afoul of SORNA’s registration requirements.
Ross’s second claim, which the Court of Appeals did not reach, was that SORNA’s vesting in the Attorney General the power to define (“specify”) whether a pre-SORNA conviction fell under the new law violated the constitutional rule against undue delegation of legislative authority. (Slip Op. at 2-3). The Court of Appeals took pains to note that the latter, non-delegation claim, has sparked much recent litigation, typically adverse to the defense – albeit with a dissent by a certain judge in United States v. Nichols, 784 F.3d 666, 667-77 (10th Cir. 2015) (Gorsuch, J., dissenting from denial of rehearing en banc). The panel majority (Williams and Pillard, JJ) found it unnecessary to tackle that thorny issue because resolving the first ground of Ross’s appeal was sufficient to prove error and cause the indictment to be dismissed.
By way of background, the majority explained that SORNA requires sex offenders to maintain registrations “‘where the offender resides, where the offender is an employee, and where the offender is a student.’” (Slip Op. at 3-4) (quoting 42 U.S.C. § 16913 and citing United States v. Kebodeaux, 133 S. Ct. 2496, 2499 (2013)). There is a statutory dichotomy, however.
- Anyone convicted of a sex offense after SORNA’s enactment must register under time limits specified in the act and keep the registration current by updating his registration within three business days of any “‘change of . . . residence.’” (Slip Op. at 4) (quoting 42 U.S.C. § 16913(c)).
- Crucially, for someone such as Mr. Ross, the statute provides that the “Attorney General shall have the authority to specify the applicability of [SORNA’s] requirements,’” and that “the Supreme Court has read the act not to make its registration requirements applicable “to pre-Act offenders until the Attorney General so specifies….’” (Slip. Op. at 4) (citing 42 U.S.C. § 16913(d) and Reynolds v. United States,,132 S. Ct. 975, 984 (2012).
Writing for the majority, Circuit Judge Williams stated that “What is critical for our purposes is when the Attorney General so specified.” (Slip Op. at 4). After wading through iterations of so-called “interim rules” and “guidelines” published by the Attorney General, Judge Williams swiftly got to the heart of the matter, finding that the “interim rule was adopted without compliance with the APA’s notice and comment“ requirements. When the interim rule was adopted the Attorney General summarily claimed that “‘immediate effectiveness” was needed to “protect the public from sex offenders’” by “‘eliminat[ing] any possible uncertainty about the applicability of the Act’s requirements.’” (Slip Op. at 5) (quoting Interim Rule, 72 Fed. Reg. at 8896/3 (Feb. 28, 2007)). “Delay would thwart these goals, he [the Attorney General] said, ‘because a substantial class of sex offenders could evade the Act’s registration requirements . . . during the pendency of a proposed rule.’” (Slip Op. at 5) (quoting 72 Fed. Reg. at 8897/3).
That approach flunked the APA, the Court of Appeals concluded. The D.C. Circuit has long maintained that the ‘‘good cause” exception to the APA’s notice and comment requirement must be “‘narrowly construed and only reluctantly countenanced.’” See Slip Op. at 5) (quoting Jifry v. F.A.A., 370 F.3d 1174, 1179 (D.C. Cir. 2004) (quoting Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir. 1992))). Examining the Attorney General’s explanation gave the Ross panel no confidence that any basis existed to depart from those strictures. Wanting here was any clear indication that Congress had expected the Attorney General to depart from the APA. As the Court underscored, “[f]ar from seeking ‘“immediate effectiveness,’” the Attorney General had acted at a leisurely pace and took 217 days after SORNA’s enactment to post the “Interim Rule” at issue. (Slip Op. at 6). “Because the Interim Rule ‘utter[ly] fail[ed] to comply with notice and comment,’ this error ‘cannot be considered harmless if there is any uncertainty at all as to the effect of that failure.’” (Id.) (quoting Sprint Corp. v. F.C.C., 315 F.3d 369, 376 (D.C. Cir. 2003).
But was this harmless error? For its part, the Government argued that any error was harmless since the Attorney General had subsequently complied with the APA in adopting a final rule that essentially restated the Interim Rule. (Slip Op. at 6). Not so fast, the panel responded: “it is the Interim Rule that the government is using to justify the indictment for conduct occurring before the Final Rule; procedurally sound adoption of a rule after the conduct affected can have no legitimate effect on that conduct.” (Id. at 6-7) (citing Sorenson v. F.C.C., 755 F.3d 702, 705-06 & n.2 (D.C. Cir. 2014). Put another way, the panel observed, “if brute persistence alone could cure a failure to invite comment, agencies would have a perverse incentive to disregard the comments they received once they got around to allowing them.” (Sip Op. at 7) (citing Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir. 2012)). Noting a stark divergence among the Circuits on the APA claim, the panel concluded that the Government’s disregard of notice and comment procedures was not harmless. (Sip Op. at 7) (collecting cases).
Fighting tooth and nails, the Government next pointed to the so-called “Final Guidelines” issued after the Interim Rule’s adoption. It took nothing out of that particular claim: the panel responded that there the Attorney General appeared to have invited notice and comment and in any event the Guidelines dealt with what state agencies were supposed to do to comply with SORNA, rather than “specify” which type of pre-enactment offense fell within SORNA’s terms. (Slip Op. at 8-9).
Moving on, Judge Williams discerned “a fatal flaw” in the Final Guidelines: “the Attorney General disclaimed any authority to decide for himself whether SORNA applied to pre-enactment offenders.” Instead the Attorney General concluded that SORNA explicitly “had applied” to pre-enactment conduct. (Slip Op. at 9) (emphasis by the court) (citing 73 Fed. Reg. at 38046/2). This was a materially mistaken interpretation of the statute, according to the panel. And that mistaken judgment call had consequences that undermined the Government’s claim, for “[w]here a statute grants an agency discretion but the agency erroneously believes it is bound to a specific decision, we can’t uphold the result as an exercise of the discretion that the agency disavows.” (Slip Op. at 9-10) (citing Prill v. NLRB, 755 F.2d 941, 947-48 (D.C. Cir. 1985)).
The rationale of Prill, in turn, undermined the Government’s position. And it set the Ross case apart from a number of sister Circuit Courts of Appeals decisions which have upheld SORNA’s application to pre-enactment offenses. None of those opinions had considered the principle set forth in Prill. To the contrary, each had been resolved on other grounds. (Slip Op. at 15) (discussing authorities). Thus, because the Government could identify “no other administrative act that would have timely created an obligation on Ross’s part to comply with SORNA’s mandate,” apart from the procedurally flawed Interim Rule and the Final Guidelines, which were explicitly based on legally incorrect reasoning, Ross’s conviction could not stand. (Slip Op. at 15). .
Concurring in part and dissenting in part, Circuit Judge Millett agreed that the Attorney General had failed to comply with notice and comment requirements and that failure was not harmless. (Slip Op. at 1) (Millett, J., concurring in part and dissenting in part). Judge Millett, however, vigorously disagreed with the panel majority on whether the Final Guidelines “(i) explicitly announce SORNA’s retroactive application, (ii) afford affected individuals clear notice of their retroactive registration obligations, (iii) spell out in detail how and when retroactivity will operate across divergent state systems, (iv) limit the requirements for participating jurisdictions to register pre-Act offenders in specific circumstances determined by the Attorney General, and (v) express the Attorney General’s independent response to and judgment about comments advocating against retroactivity.” (Id. at 1-2) (citing cases).
A tip of the proverbial hat goes to Assistant Federal Defender Lisa Wright, who argued this highly complex and challenging cause, and was ably aided on the briefs by Tony Axam, Jr., Rosanna Taormina and Chief Defender A. J. Kramer.
–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.