United States v. Ross

• Decision Date: 24 February 2017
• Docket Number: No. 11-3115,11-3115
• Citation: 848 F.3d 1129
• Parties: UNITED STATES of America, Appellee v. Anthony T. ROSS, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

848 F.3d 1129

UNITED STATES of America, Appellee

v.Anthony T. ROSS, Appellant

No. 11-3115

United States Court of Appeals, District of Columbia Circuit.

Argued September 26, 2016

Decided February 24, 2017

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Tony Axam Jr. and Rosanna M. Taormina, Assistant Federal Public Defenders, entered appearances.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was Elizabeth Trosman, Assistant U.S. Attorney.

Before: Millett and Pillard, Circuit Judges, and Williams, Senior Circuit Judge.

Opinion concurring in part, dissenting in part, and dissenting from the judgment filed by Circuit Judge Millett.

Williams, Senior Circuit Judge:

Anthony T. Ross was convicted in 1999 of misdemeanor sexual assault. In 2009 he moved from Washington D.C. to Ohio, and on October 7, 2010 he was indicted for failing to register with local authorities pursuant to the Sex Offender Registration and Notification Act ("SORNA"). See 120 Stat. 587, 590 (2006), 42 U.S.C. § 16901 et seq . ; 18 U.S.C. § 2250(a). The act, passed by Congress in 2006, "seeks ... to make more uniform and effective" the "patchwork of federal and 50 individual state [sex offender] registration systems," Reynolds v. United States , 565 U.S. 432, 132 S.Ct. 975, 978, 181 L.Ed.2d 935 (2012). In pursuit of that goal, SORNA imposes federal criminal penalties on a person who is subject to the act's registration requirements, who "travels in interstate or foreign commerce," and who knowingly fails to update his registration when required by the act to do so. § 2250(a).

Ross moved to dismiss the indictment, claiming a number of flaws in its legal basis, two of which he presses before us. His sexual assault conviction had preceded SORNA's 2006 enactment, and the Supreme Court has established that SORNA did not apply to such persons on its own but could be made applicable only if the Attorney General so "specif[ied]." Reynolds v. United States , 565 U.S. 432, 132 S.Ct. 975, 984, 181 L.Ed.2d 935 (2012). Ross argued first that insofar as the Attorney General took steps before Ross's alleged SORNA violation to "specify" the act's application to pre-SORNA offenders, those efforts were defective under the Administrative Procedure Act, 5 U.S.C. § 551 et seq . Second, he argued that Congress's vesting the Attorney General with such authority violated the constitutional rule against undue delegation of legislative authority. See United States v. Ross , 778 F.Supp.2d 13, 16 (D.D.C. 2011). The district court denied Ross's motion to dismiss, and Ross entered a conditional guilty plea, reserving his right to appeal on the legal issues.

All the other geographic circuits have addressed the non-delegation claim and have rejected it. United States v. Nichols , 775 F.3d 1225, 1231 (10th Cir. 2014), rev'd on other grounds , ––– U.S. ––––, 136 S.Ct. 1113, 194 L.Ed.2d 324 (2016) ; United States v. Richardson , 754 F.3d 1143, 1146 (9th Cir. 2014) ; United States v. Cooper , 750 F.3d 263, 271–72 (3d Cir. 2014) ; United States v. Goodwin , 717 F.3d 511, 516–17 (7th Cir. 2013) ; United States v. Kuehl , 706 F.3d 917, 920 (8th Cir. 2013) ; United States v. Sampsell , 541 Fed.Appx. 258, 259–60 (4th Cir. 2013) ; United States v. Parks , 698 F.3d 1, 7–8 (1st Cir. 2012) ; United States v. Felts , 674 F.3d 599, 606 (6th Cir. 2012) ; United States v. Guzman , 591 F.3d 83, 92-93 (2d Cir. 2010) ; United States v. Whaley , 577 F.3d 254, 262–64 (5th Cir. 2009) ; United States v. Ambert , 561 F.3d 1202, 1212–14 (11th Cir. 2009). But see United States v. Nichols , 784 F.3d 666, 667–77 (10th Cir. 2015) (Gorsuch, J., dissenting from denial of rehearing en banc ). On the view we take of Ross's APA claims we need not reach the delegation issue. Concluding that the act did not apply to pre-SORNA offenders at the time of Ross's charged conduct because of the Attorney General's APA violations, we reverse the district court ruling and vacate the conviction.

* * *

SORNA requires sex offenders to maintain registrations "where the offender resides, where the offender is an employee, and where the offender is a student." 42 U.S.C. § 16913 ; see United States v. Kebodeaux , –––U.S. ––––, 133 S.Ct. 2496, 2499, 186 L.Ed.2d 540 (2013). If a person is convicted of a sex offense after SORNA's enactment, he must register under time limits specified in the act. And he must keep the registration current by updating his registration within three business days of any "change of ... residence." § 16913(c).

For persons convicted before SORNA's enactment, however, the act provides that the "Attorney General shall have the authority to specify the applicability of [SORNA's] requirements," § 16913(d), and the Supreme Court has read the act not to make its registration requirements applicable "to pre-Act offenders until the Attorney General so specifies," Reynolds , 132 S.Ct. at 984. What is critical for our purposes is when the Attorney General so specified.

The most obvious candidate for this specification is a rule the Attorney General issued in December 2010 after a rulemaking whose APA compliance is not contested here. Applicability of the Sex Offender Registration and Notification Act , 75 Fed. Reg. 81849, 81850/2 (Dec. 29, 2010) (codified at 28 C.F.R. part 72) (the "Final Rule ") (explicitly making SORNA applicable to "sex offenders convicted ... prior to the enactment of that Act" (internal quotation marks omitted)). But this rule took effect too late to support Ross's conviction for failure to update his registration in the wake of his 2009 move to Ohio.

The government contends that two earlier actions sufficed: an interim rule issued in 2007 and "guidelines" proposed in 2007 and finalized in 2008. We find them inadequate.

In 2007 the Attorney General adopted an interim rule declaring SORNA applicable to pre-enactment offenders. Applicability of the Sex Offender Registration and Notification Act , 72 Fed. Reg. 8894, 8897/3 (Feb. 28, 2007) (the "Interim Rule "). In the preamble, the Attorney General expressed his view—later rejected by Reynolds —that the requirements for pre-SORNA offenders automatically "took effect when SORNA was enacted on July 27, 2006." Id . at 8895/3. He also hedged, stating that he was "exercis[ing] his authority ... to specify this scope of application for SORNA, regardless of whether SORNA would apply with such scope absent this rule." Id . 8896/2 (emphasis added). But he issued the rule without providing for advance notice or inviting comment, as required by the APA, see 5 U.S.C. § 553(b) -(d), instead making the rule effective immediately, with provision for comments thereafter. To justify that shortcut, he invoked the "good cause" exceptions of § 553(b), (d), specifically the allowance for instances where providing notice and comment would be "contrary to the public interest." Interim Rule , 72 Fed. Reg. at 8896/3–8897/1. He 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." Id . at 8896/3. Delay would thwart these goals, he said, "because a substantial class of sex offenders could evade the Act's registration requirements ... during the pendency of a proposed rule."Id. at 8897/3.

We've said that the " ‘good cause’ exception ... is to be ‘narrowly construed and only reluctantly countenanced.’ " 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) ). We review the agency's finding of good cause de novo . Sorenson v. F.C.C. , 755 F.3d 702, 706 (D.C. Cir. 2014). Here the decisions of Congress and the Attorney General himself bely any claim that there existed such a pressing need for immediate action as to warrant brushing aside the statutory notice-and-comment requirements.

Far from seeking "immediate effectiveness," Congress built in at least some delay with its provision for the Attorney General to "specify" the act's application to pre-SORNA offenders, thereby allowing him, as the Reynolds Court observed, to work out a wide range of "complexities, lacunae, and difficulties" that application to pre-SORNA offenders would entail. Reynolds , 132 S.Ct. at 982. The Court also observed that Congress had allowed states three years to implement SORNA's requirements (extendable by the Attorney General to five), id . at 981, and that the government had "overstate[d] the need for instantaneous registration," id . at 983. Of course a relaxed statutory schedule (or no deadline at all) would not militate against dispensing with notice and comment if some emergency had arisen after enactment, as did the 9/11 attacks, see Jifry , 370 F.3d at 1179–80, but the government points to no such unexpected development here.

The Attorney General's own behavior also undercuts the current claim of urgency: as Reynolds observed, he waited over half a year—217 days—after the effective date of the act to publish the Interim Rule . 132 S.Ct. at 983. In this context, the incremental delay entailed by a 30–day comment period and the requisite time for thinking about comments seems a very reasonable trade-off—and its denial unreasonable.

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." Sprint Corp. v. F.C.C. , 315 F.3d 369, 376 (D.C. Cir. 2003). The government suggests that its reaching the same conclusion in the Final Rule and in its SORNA guidelines (discussed below), despite having received numerous comments, dispels any uncertainty. That argument might justify treating the Final Rule as effective. See Federal Express Corp. v. Mineta , 373 F.3d 112, 120 (D.C. Cir. 2004). But it is the Interim Rule that the...