United States v. Anthony Ross
2017 U.S. App. LEXIS 3350
| D.C. Cir. | 2017Background
- Anthony T. Ross, convicted of misdemeanor sexual assault in 1999 (pre-SORNA), moved to Ohio in 2009 and was indicted in 2010 for failing to register under SORNA (18 U.S.C. § 2250).
- SORNA (2006) assigns the Attorney General authority to “specify” how the Act applies to offenders convicted before enactment (42 U.S.C. § 16913(d)); Reynolds v. United States later held SORNA does not reach pre-Act offenders unless the Attorney General so specifies.
- The Attorney General issued (1) an Interim Rule (Feb. 2007) applying SORNA to pre-Act offenders without pre‑promulgation notice-and-comment, (2) Final Guidelines (July 2008) addressing implementation and retroactivity, and (3) a Final Rule (Dec. 2010) that explicitly made SORNA retroactive.
- Ross argued the Interim Rule and/or the Final Guidelines were legally defective under the Administrative Procedure Act (failure to afford notice-and-comment; and relatedly that the Attorney General failed properly to “specify” retroactivity), and alternatively raised a non‑delegation challenge.
- The district court denied dismissal; Ross pleaded guilty conditionally and appealed. The D.C. Circuit reversed, holding the Interim Rule and the Guidelines did not validly specify SORNA’s retroactive reach in time to support Ross’s indictment and conviction.
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the Attorney General validly "specified" SORNA's application to pre‑Act offenders before Ross's alleged offense | The Interim Rule and/or the 2008 Final Guidelines did not validly specify retroactivity; the Interim Rule lacked notice-and-comment and the Guidelines never exercised independent discretion to make SORNA retroactive | The Interim Rule, Final Guidelines, and later Final Rule collectively specified retroactivity; the Guidelines provided notice and substantive specification sufficient to create obligations before 2010 | The Interim Rule was invalid for lack of notice-and-comment and the Final Guidelines did not effect the required specification that would support criminal liability before the 2010 Final Rule; conviction vacated |
| Whether the Interim Rule’s omission of notice-and-comment satisfied the APA "good cause" exception | No; the Attorney General waited 217 days after enactment and no emergency justified bypassing notice-and-comment | Immediate effectiveness was necessary to prevent evasion and protect the public | The court reviewed good‑cause de novo, rejected the claimed urgency, and held the Interim Rule’s shortcut unlawful |
| Whether the Final Guidelines constituted an exercise of the Attorney General’s discretionary authority to "specify" retroactivity | The Guidelines merely assisted states and did not independently exercise discretion to decide retroactivity; the AG disclaimed that authority there | The Guidelines explicitly announced retroactivity and addressed implementation and exceptions, thus specifying applicability | The court concluded the Guidelines did not validly perform the specification task required by Reynolds for pre-Act criminal liability |
| Whether the court needed to resolve the constitutional non‑delegation challenge | Ross also argued the delegation to the AG was an unconstitutional delegation | Government and multiple circuits have rejected the non‑delegation challenge | The panel did not reach the non‑delegation question because it resolved the APA/specification issues in Ross’s favor |
Key Cases Cited
- Reynolds v. United States, 565 U.S. 432 (2012) (SORNA does not apply to pre‑Act offenders unless the Attorney General specifies applicability)
- Carr v. United States, 560 U.S. 438 (2010) (discusses SORNA’s operation and criminal provisions)
- Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985) (agency error where it treats discretionary decision as mandated by statute)
- Jifry v. F.A.A., 370 F.3d 1174 (D.C. Cir. 2004) (narrow construction of APA good‑cause exception)
- Sorenson v. F.C.C., 755 F.3d 702 (D.C. Cir. 2014) (de novo review of agency good‑cause finding)
- Sprint Corp. v. F.C.C., 315 F.3d 369 (D.C. Cir. 2003) (harmlessness standard for notice‑and‑comment violations)
- Federal Express Corp. v. Mineta, 373 F.3d 112 (D.C. Cir. 2004) (when later rulemaking cures procedural defects of an earlier rule)
- Chemical Waste Mgmt., Inc. v. EPA, 869 F.2d 1526 (D.C. Cir. 1989) (agency upheld despite apparent presumption of retroactivity because it addressed comments and explained reasons)