UNITED STATES of America, Plaintiff-Appellee, v. Brian Lee GOULD, Defendant-Appellant.
No. 08-4302.
United States Court of Appeals, Fourth Circuit.
Argued: Jan. 28, 2009. Decided: June 18, 2009.
568 F.3d 459
Before NIEMEYER and MICHAEL, Circuit Judges, and Arthur L. ALARCÓN, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Senior Judge ALARCÓN joined. Judge MICHAEL wrote a dissenting opinion.
NIEMEYER, Circuit Judge:
In this appeal we determine whether Brian Lee Gould was properly convicted under the Sex Offender Registration and Notification Act (“SORNA“),
Gould was convicted of a sex offense in the District of Columbia in 1985 and, upon his release in 2002, was required to register, by pre-SORNA federal and state law, as a sex offender in the State in which he resided, worked, or was a student. See
On July 27, 2006, before Gould moved to Maryland, Congress enacted SORNA, which expanded the information required to be provided on registration and created a federal requirement that sex offenders “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.”
Approximately one year after SORNA was enacted, Gould was arrested in Maryland and charged with violating SORNA,
Gould contends that the district court should have dismissed his indictment because (1) he could not have been prosecuted for failure to register under SORNA because Maryland had not yet implemented SORNA; (2) he was “unable” to “initially register,” as required by SORNA,
We reject each of Gould‘s arguments for the reasons that follow and affirm the judgment of the district court.
I
In 1985, Gould was convicted in the District of Columbia for assault with intent to commit sodomy while armed, in violation of
In December 2004, Gould moved to Pennsylvania, where he again registered as a sex offender. But again he was charged in Pennsylvania with failing to comply with the requirement to update his registration. Before he could be arrested, however, he left Pennsylvania for Maryland, and on May 23, 2007, a warrant was issued in Pennsylvania for his arrest.
Before leaving Pennsylvania, Gould advised his parole officer of his intent to leave Pennsylvania, and the officer told Gould that he was not permitted to leave the State. Gould nonetheless moved to Maryland on August 21, 2006. He failed to keep two appointments, on August 21 and August 28, required by his parole officer in Pennsylvania, prompting a United States Parole Commissioner to issue a warrant for his arrest on August 31, 2006.
Gould failed to register as a sex offender in Maryland. In July 2007, he was arrested in Maryland on the warrant issued by the Parole Commissioner and was subsequently charged with failure to register as a convicted sex offender, in violation of SORNA,
Between on or about August 21, 2006, and continuing until on or about July 18, 2007, in the District of Maryland, Brian Lee Gould ..., an individual required to register under [SORNA] by reason of a conviction under Federal law and the law of the District of Columbia for Assault with Intent to Commit Sodomy while Armed, and an individual who traveled in interstate and foreign commerce after being required to register, did knowingly fail to register and update a registration as required by SORNA.
Gould filed a motion to dismiss the indictment, raising the statutory and constitutional grounds asserted in this appeal, and the district court denied the motion with a written opinion. See United States v. Gould, 526 F.Supp.2d 538 (D.Md.2007). Gould thereafter entered a guilty plea, reserving the right to appeal the district court‘s order denying his motion to dismiss, and the district court sentenced him to 24 months’ imprisonment.
On appeal, Gould claims that SORNA does not, by its terms, authorize his prosecution for a violation of SORNA and that, in any event, SORNA is unconstitutional both on its face and as applied to him.
II
Gould contends first that he cannot be prosecuted for failing to register under SORNA because Maryland has not yet implemented SORNA. He asserts that “SORNA does not impose a direct federal mandate on individuals to register.... Instead, it merely sets forth registration standards that it encourages states [through the Spending Clause of the Constitution] to incorporate into their local laws by July 2009 at the earliest.” He reasons that “because Maryland has not yet implemented SORNA, [he] was not subject to its constraints and could not be legally punished for violating the Act.” Gould argues that to “conclude that SORNA applies in pre-implementation states would prematurely force states to register offenders under SORNA‘s terms before they choose to adopt the Act. Such reading would render meaningless the provision in SORNA [at
SORNA § 141(a), entitled “Criminal Penalties for Nonregistration,” provides in relevant part:
Whoever—
(1) is required to register under [SORNA];
(2) (A) is a sex offender as defined for the purposes of [SORNA] by reason of a conviction under Federal law ... [or] the law of the District of Columbia ...; or
(B) travels in interstate or foreign commerce ...; and
(3) knowingly fails to register or update a registration as required by [SORNA];
shall be fined under this title or imprisoned not more than 10 years, or both.
A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.
The parties do not dispute that Gould was a sex offender by reason of his conviction under District of Columbia law or that after his conviction he traveled to Maryland where he knowingly failed to register as a sex offender. The question at issue is whether SORNA required Gould to register in Maryland before Maryland implemented SORNA by amending its registration facilities to comport with the enhanced standards imposed by SORNA, or, stated otherwise, whether Gould‘s registration obligations under SORNA § 113(a),
First, SORNA § 113(a)‘s requirements to register and maintain registration are
Second, the structure of SORNA‘S requirements indicates a separateness of the sex offenders’ individual duty to register and the State‘s duty to enhance its registries and standards as mandated by the Act. As the Attorney General‘s National Guidelines for SORNA note, “Some of the provisions in SORNA are formulated as directions to sex offenders, including those appearing in sections 113(a)-(b).... Other SORNA provisions are cast as directions to jurisdictions ....” National Guidelines,
Third, the Attorney General, acting under
For the reasons given, Gould‘s contention that SORNA‘s registration requirement did not apply to him because Maryland has not yet implemented SORNA‘s requirements is foreclosed. We conclude that the requirement imposed on individuals to register is independent of the requirement imposed on the States to implement the enhanced registration and notification standards of SORNA. Accordingly, SORNA‘s requirement that a sex offender register applies whether registration would be accomplished through pre-SORNA registration facilities or under
III
Gould also claims that “[p]unishing [him] for failing to register under SORNA—a law that does not yet apply to him—violates the Ex Post Facto Clause of the Constitution.” As he acknowledges, the Ex Post Facto Clause prohibits punishment of a defendant “for an act which was not punishable at the time it was committed.” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).
Gould‘s argument, however, rests on his contention that SORNA could not apply to him until Maryland implemented SORNA. Inasmuch as we reject this contention, we also reject his argument under the Ex Post Facto Clause. Gould was punished for failing to register during the period after SORNA was enacted, beginning at least as early as February 28, 2007, when the Attorney General issued his Interim Regulations clarifying that SORNA applied to pre-SORNA sex offenders. Because Gould was punished for his conduct after enactment of the SORNA provision criminalizing the conduct, his punishment does not violate the Ex Post Facto Clause.
IV
Gould contends next that he was “unable” to “initially register,” as required by SORNA because § 16913(b), which addresses “initial registration,” requires sex offenders to “initially register” under SORNA before completing their sentences for the sex offense. See
Gould‘s argument bootstraps on his first argument, that because Maryland has not implemented SORNA, he is unable to register there in compliance with SORNA. But, as we pointed out in Part II above, a sex offender is able to register under SORNA if he is able to register by means of an existing state registration facility, even if
SORNA applies to all sex offenders, including those convicted of their registration offenses prior to the enactment of SORNA or prior to particular jurisdictions’ incorporation of the SORNA requirements into their programs. Jurisdictions are specifically required to register such sex offenders if they remain in the system as prisoners, supervisees, or registrants, or if they later reenter the system because of conviction for some other crime (whether or not the new crime is a sex offense).
National Guidelines,
Gould was thus not a sex offender who fell into the narrow class of offenders “unable to comply” with initial registration. See
In short, Gould was fully aware of his registration duties and was able to comply with them. He registered in West Virginia and in Pennsylvania, and he was convicted in West Virginia for failing to update his registration there. In addition, he stipulated that he received a letter from Pennsylvania officials reminding him of his registration duties. Finally, he stipulated that he knew he was required to register in Maryland and knowingly failed to do so.
SORNA made Gould‘s knowing failure to register in Maryland, a place where he resided, a federal offense. As the Attorney General stated, in promulgating his Interim Regulations:
SORNA directly imposes registration obligations on sex offenders as a matter of federal law and provides for federal enforcement of these obligations under circumstances supporting federal jurisdiction.
***
In contrast to SORNA‘s provision of a three-year grace period for jurisdictions to implement its requirements, SORNA‘s direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness. They took effect when SORNA was en-
V
Gould contends that he cannot be punished under
This argument, however, overlooks the fact that SORNA‘s criminal provision is not a specific intent law. In
Gould argues further that even in the absence of actual notice of criminal liability, due process requires that a statute not criminalize “wholly passive conduct.” Like the defendant in Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), Gould claims that he is being prosecuted for wholly passive conduct—i.e., his failure to register. In Lambert, when considering a city ordinance that required all felons to register, the Supreme Court noted that “circumstances which might move [a felon] to inquire as to the necessity of registration are completely lacking” with respect to such a law. Id. at 229, 78 S.Ct. 240.
Unlike an isolated city ordinance that requires all members of the broad class of all felons to register, however, SORNA criminalizes the failure to register of a much more narrowly targeted class of persons in a context where sex-offender registration has been the law for years and Gould knew that. When SORNA was enacted, every State had registration requirements for sex offenders. Moreover, as we pointed out, Gould registered in West Virginia and Pennsylvania, was convicted in West Virginia for failing to update his registration, and was notified by letter in Pennsylvania of his continuing duties to register and update his registration. In addition, he stipulated in this case that he knowingly failed to register in
VI
Gould also contends that Interim Regulation 72.3,
The APA requires that notice of a proposed rule be given by publication in the Federal Register,
In this case, the Attorney General issued the Interim Regulations on February 28, 2007, without notice and comment, invoking the good cause exception.
The immediate effectiveness of this rule is necessary to eliminate any possible uncertainty about the applicability of the Act‘s requirements and related means of enforcement, including criminal liability under
18 U.S.C. § 2250 for sex offenders who knowingly fail to register as required—to sex offenders whose predicate convictions predate the enactment of SORNA. Delay in the implementation of this rule would impede the effective registration of such sex offenders and would impair immediate efforts to protect the public from sex offenders who fail to register through prosecution and the imposition of criminal sanctions. The resulting practical dangers include the commission of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders that could have been prevented had local authorities and the community been aware of their presence, in addition to greater difficulty in apprehending perpetrators who have not been registered and tracked as provided by SORNA. This would thwart the legislative objective of “protect[ing] the public from sex offenders and offenders against children” by establishing “a comprehensive national system for the registration of those offenders,” SORNA § 102, because a substantial class of sex offenders could evade the Act‘s registration requirements and enforcement mechanisms during the pendency of a proposed rule and delay in the effectiveness of a final rule.
In the circumstances, we conclude that the Attorney General had good cause to invoke the exception to providing the 30-day notice. There was a need for legal certainty about SORNA‘s “retroactive” application to sex offenders convicted before SORNA and a concern for public safety that these offenders be registered in accordance with SORNA as quickly as possible. Delaying implementation of the regulation to accommodate notice and comment could reasonably be found to put the public safety at greater risk. In addition, the Attorney General did provide for and receive post-promulgation public comments, which were addressed in the proposed National Guidelines issued in May 2007 and ultimately in the final National Guidelines issued in July 2008. See
VII
Finally, Gould contends that SORNA is unconstitutional as exceeding Congress’ power under the Commerce Clause “because regulating registration within a state is a purely local intrastate activity that does not substantially affect interstate commerce.”
As noted above, the elements of a SORNA failure to register offense under
Under the Commerce Clause, Congress has authority to regulate (1) “the use of the channels of interstate commerce,” (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities,” and (3) “those activities having a substantial relation to interstate commerce.” United States v. Morrison, 529 U.S. 598, 609, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (emphasis added) (quoting United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)) (internal quotation marks omitted).
Congress also has the authority to regulate persons in interstate commerce, especially persons who move from the State of conviction to another State and there fail to register, as they use “instrumentalities of interstate commerce.” See United States v. Ambert, 561 F.3d 1202, 1210-11 (11th Cir.2009); Lawrance, 548 F.3d at 1337 (“SORNA clearly intends to regulate interstate activity, i.e., the evasion of sex offender registration requirements by sex offenders who have crossed jurisdictional lines“).
Gould contends, however, that because § 2250(a) “does not mandate any nexus between the act of failing to register and interstate travel,” § 2250(a)(2)(B) invokes unlimited power because almost everyone at some point travels in interstate commerce. He argues that “the mere fact that the individual has, at some point, traveled in interstate commerce does not establish that his or her subsequent failure to register ‘substantially affects interstate commerce.‘” But SORNA is not so expansive. It requires additional elements and a specific sequence. To satisfy the commerce component of § 2250(a), a sex offender must have been convicted of a qualifying sex offense and, after conviction, traveled to another State and failed to register or maintain his registration. There must be a conviction that gives rise to the registration requirement, subsequent interstate travel, and a failure to register. In this case, Gould satisfied these elements and his interstate travel followed his conviction of a sex offense that gave rise to his requirement to register in Maryland. Thus he was properly convicted under § 2250(a).
Our conclusion that § 2250(a) does not violate the Commerce Clause is also consistent with decisions of other circuits that have reached this issue. See Ambert, 561 F.3d at 1210-12 (upholding § 2250(a) “under either of the first two Lopez categories because it regulates both the use of channels of interstate commerce and the instrumentalities of interstate commerce” and upholding § 16913(a) because the section “is reasonably adapted to the attainment of a legitimate end under the commerce clause“); Hinckley, 550 F.3d at 939-40
Beyond regulating the channels and instrumentalities of commerce in criminalizing the failure to register, Congress also devised “a comprehensive national system” for the registration of sex offenders, see
While congressional findings are certainly helpful in reviewing the substance of a congressional statutory scheme, particularly when the connection to commerce is not self-evident, and while we will consider congressional findings in our analysis when they are available, the absence of particularized findings does not call into question Congress’ authority to legislate.
Gonzales v. Raich, 545 U.S. 1, 21, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). The question remains whether Congress properly exercised its power to regulate “those activities that substantially affect interstate commerce.” Lopez, 514 U.S. at 559, 115 S.Ct. 1624; see also Raich, 545 U.S. at 17, 125 S.Ct. 2195; Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 87 L.Ed. 122 (1942) (“But even if appellee‘s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce ...“). In resolving this question, a court determines whether Congress had a rational basis for a statute‘s enactment. See Raich, 545 U.S. at 22, 125 S.Ct. 2195 (“In assessing the scope of Congress’ authority under the Commerce Clause, ... [w]e need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding” (quoting Lopez, 514 U.S. at 557, 115 S.Ct. 1624)).
In establishing a comprehensive national system for registration of sex offenders, Congress recognized that sex offenders constitute a unique class of criminal insofar as members of that class are considered to have higher rates of recidivism than other offenders. See
In 1994, Congress enacted the Jacob Wetterling Act,
Some 10 years later, however, Congress found that the patchwork of standards that resulted from the various state programs and piecemeal amendments had left loopholes and gaps that allowed for numerous heinous crimes. Moreover, crimes committed by previously convicted sexual offenders were increasing in number, and those required to register under state laws were “disappearing.” Congress determined that the patchwork should be replaced with a new comprehensive set of national standards, as The National Guidelines explain:
While sex offender registration and notification in the United States are generally carried out through programs operated by the individual states and other non-federal jurisdictions, their effectiveness depends on also having effective arrangements for tracking of registrants as they move among jurisdictions and some national baseline of registration and notification standards. In a federal union like the United States with a mobile population, sex offender registration could not be effective if registered sex offenders could simply disappear from the purview of the registration authorities by moving from one jurisdiction to another, or if registration and notification requirements could be evaded by moving from a jurisdiction with an effective program to a nearby jurisdiction that required little or nothing in terms of registration and notification.
National Guidelines,
This is critical to sew together the patch-work quilt of 50 different State attempts to identi[f]y and keep track of sex offenders.... Laws regarding registration for sex offenders have not been consistent from State to State[;] now all States will lock arms and present a unified front in the battle to protect children. Web sites that have been weak in the past, due to weak laws and haphazard updating and based on inaccurate information, will now be accurate, updated and useful for finding sex offenders.
A concern was also expressed that sex offenders “forum-shop” for States with lax registration laws. Ernie Allen, President and CEO of the National Center for Missing and Exploited Children, testified before the House Judiciary Committee that the lack of “consistency” and “uniformity” in state registration laws allowed sex offenders to “forum-shop” among States:
The public has a right to know about all registered sex offenders living in our communities. The amount of protection a child is given shouldn‘t depend on the state in which that child lives. There is clearly a need for more uniformity among state programs of community notification of sex offenders.
Protecting Our Nation‘s Children from Sexual Predators and Violent Criminals: What Needs To Be Done? Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 109th Cong. 19 (2005) (statement of Ernie Allen).
Thus, Congress, motivated by a desire to prevent sex offenders from traveling among the States to avoid state registration, used its commerce power to enact a national program mandating stronger and the more comprehensive registration system, as contained in SORNA. And in SORNA, it so stated:
In order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against the victims listed below, Congress in this Act establishes a comprehensive national system for the registration of those offenders: [listing the names of 17 victims].
Even though the comprehensive federal registration system created by SORNA
In sum, we find no basis to support Gould‘s contention that § 2250(a), criminalizing his failure to register, violates the Commerce Clause.
The judgment of the district court is
AFFIRMED.
MICHAEL, Circuit Judge, dissenting:
The Sex Offender Registration and Notification Act (SORNA or Act),
The Attorney General does not dispute that, in exercising his rulemaking authority under each of these provisions, he was subject to the procedural requirements of the Administrative Procedure Act (APA),
I.
Section 113(a) of SORNA provides that: “A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.”
Pursuant to his rulemaking authority under § 113(d), the Attorney General issued an “interim rule” on February 28, 2007, clarifying that “the requirements of [SORNA] apply to all sex offenders (as defined in that Act), including those convicted of the offense for which registration is required prior to the enactment of the Act.”
In contrast to SORNA‘s provision of a three-year grace period for jurisdictions to implement its requirements, SORNA‘s direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness. They took effect when SORNA was enacted on July 27, 2006, and currently apply to all offenders in the categories for which SORNA requires registration.
In issuing the interim rule, the Attorney General declined to comply with the public notice and comment procedures required under the APA. Subsection 553(b) of the APA broadly requires that notice of all proposed rules be published in the Federal Register.
After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
The Attorney General relied upon the good cause exception in § 553(b)(B) to excuse the lack of public notice and comment for the interim rules. He likewise relied on the good cause exception in § 553(d)(3) to excuse delaying implementation of the rule. He claimed that notice and comment was “impracticable, unnecessary, or contrary to the public interest” as provided in
The immediate effectiveness of this rule is necessary to eliminate any possi-
ble uncertainty about the applicability of the Act‘s requirements and related means of enforcement, including criminal liability under
18 U.S.C. 2250 for sex offenders who knowingly fail to register as required—to sex offenders whose predicate convictions predate the enactment of SORNA. Delay in the implementation of this rule would impede the effective registration of such sex offenders and would impair immediate efforts to protect the public from sex offenders who fail to register through prosecution and the imposition of criminal sanctions. The resulting practical dangers include the commission of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders that could have been prevented had local authorities and the community been aware of their presence, in addition to greater difficulty in apprehending perpetrators who have not been registered and tracked as provided by SORNA. This would thwart the legislative objective of “protect[ing] the public from sex offenders and offenders against children” by establishing “a comprehensive national system for the registration of those offenders,” SORNA § 102, because a substantial class of sex offenders could evade the Act‘s registration requirements and enforcement mechanisms during the pendency of a proposed rule and delay in the effectiveness of a final rule.It would accordingly be contrary to the public interest to adopt this rule with the prior notice and comment period normally required under
5 U.S.C. 553(b) or with the delayed effective date normally required under5 U.S.C. 553(d) .
Although the interim rule was accompanied by a request for post-promulgation comments, the Attorney General never published a response to any comments that he may have received. The Attorney General also sought comments in the Federal Register notice for the proposed guidelines under § 112(b), see
Because the Attorney General lacked sufficient justification for failing to comply with the APA‘s notice and comment requirements in promulgating the rule under § 113(d) (
A.
The bar for invoking § 553(b)(B)‘s good cause exception is a high one: “The exception excuses notice and comment in emergency situations, or where delay could result in serious harm.” Jifry v. FAA, 370 F.3d 1174, 1179 (D.C.Cir.2004) (internal citation removed); see also Nat‘l Nutritional Foods Ass‘n v. Kennedy, 572 F.2d 377, 384 (2d Cir.1978) (“The legislative history of the Administrative Procedure Act demonstrates that Congress intended the exceptions in § 553(b)(B) to be narrow ones.“). “If conclusory statements that normal procedures were not followed because of the need to provide immediate guidance and information constituted ‘good cause,’ then an exception to the notice requirement would be created that would swallow the rule.” Zhang v. Slattery, 55 F.3d 732, 746, 747 (2d Cir.1995) (internal quotations and alterations omitted) (noting that “a largely conclusory statement” that a rule‘s “immediate promulgation is necessary in order to benefit the greatest number of” affected parties “is not enough” because, “[p]resumably, agencies deem all their rules beneficial; the notice and com-
Courts have therefore “looked askance at agencies’ attempts to avoid the standard notice and comment procedures, holding that exceptions under § 553 must be ‘narrowly construed and only reluctantly countenanced’ in order to assure that ‘an agency‘s decisions will be informed and responsive.’ ” Asiana Airlines v. FAA, 134 F.3d 393, 396 (D.C.Cir.1998) (quoting N.J. Dep‘t of Envtl. Prot. v. EPA, 626 F.2d 1038, 1045 (D.C.Cir.1980)).
In promulgating the February 28, 2007, rule, the Attorney General elected to rely on the public interest element of § 553(b)(B)‘s good cause exception. “[T]he Attorney General‘s Manual states that [the public interest exception] ‘connotes a situation in which the interest of the public would be defeated by any requirement of advance notice,’ as when announcement of a proposed rule would enable the sort of ... manipulation the rule sought to prevent.” Util. Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (D.C.Cir.2001) (quoting U.S. Dept. of Justice, Attorney General‘s Manual on the Administrative Procedure Act 31 (1947)). We must therefore consider whether the public interest would have been defeated by allowing notice and comment before promulgating the interim rule.
The Attorney General argues that the public interest would be harmed by delay. Specifically, he contends that delay “would impede the effective registration of [] sex offenders [to whom coverage was extended under the interim rule] and would impair immediate efforts to protect the public from sex offenders who fail to register through prosecution and the imposition of criminal sanctions.”
First, the Attorney General‘s declaration in
Further, under the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (Me-
Second, the Attorney General‘s assertion that harm to the general public would result from delay assumes that it was inevitable that he would declare that SORNA applied retroactively and in pre-implementation jurisdictions. If the Attorney General had promulgated a rule that SORNA does not apply to past sex offenders or those in pre-implementation jurisdictions, no possible harm to the public would have resulted from the delay; these offenders would never have become subject to federal prosecution under SORNA. In contrast, past sex offenders were undoubtedly harmed by the Attorney General‘s decision not to consider their views in promulgating the interim rule.
Third, to the extent the Attorney General believed that delay must be avoided to “eliminate any possible uncertainty about the applicability of the Act‘s requirements” (particularly for jurisdictions considering whether to implement SORNA‘s requirements), he significantly undercut this rationale by requesting post-promulgation comments on
On the other hand, if the Attorney General was not genuinely interested in considering the public‘s views, requesting post-promulgation comments makes a sham of the APA‘s rulemaking procedures. Indeed, “[i]t is antithetical to the structure and purpose of the APA for an agency to implement a rule first, and then seek comment later.” Paulsen v. Daniels, 413 F.3d 999, 1005 (9th Cir.2005). This is so because “[s]ection 553 is designed to give affected parties an opportunity to participate in agency decisionmaking early in the process, when the agency is more likely to consider alternative ideas.” N. Arapahoe Tribe v. Hodel, 808 F.2d 741, 751 (10th Cir.1987). “Notice and comment procedures afford interested parties a meaningful opportunity to participate in the rulemaking process and assure that an agency‘s decisions will be informed and responsive.” Mobil Oil Corp. v. Dept. of Energy, 728 F.2d 1477, 1490 (Temp.Emer.Ct.App.1983).
In U.S. Steel Corp. v. EPA, 595 F.2d 207 (5th Cir.1979), the Environmental Protection Agency (EPA) advanced the argument that “despite its lack of literal compliance with § 553[it] satisfied the intent of § 553 by accepting post-promulgation comments
The EPA overlooks ... the crucial difference between comments before and after rule promulgation. Section 553 is designed to ensure that affected parties have an opportunity to participate in and influence agency decision making at an early stage, when the agency is more likely to give real consideration to alternative ideas.
Id. Thus, the court rejected EPA‘s argument that “even if it was obliged to afford opportunity for § 553 notice and comment before making the designations, its failure to do so was cured by its acceptance of comments after the effective date.” Id. Adopting EPA‘s argument, the court said, “would lead in the long run to depriving parties affected by agency action of any way to enforce their § 553 rights to pre-promulgation notice and comment.” Id. The same reasoning applies in this case.
Finally, any contention that jurisdictions needed clarity about the retroactive application of SORNA before deciding whether to implement the Act is insufficient to invoke the good cause exception in this case. Jurisdictions were afforded three full years (extendable for an additional two years) to implement SORNA.
Ultimately, if Congress truly wanted the Attorney General to make a determination regarding the retroactivity of SORNA without engaging in the required notice and comment and receiving outside input, it had several options. Congress could have simply declared SORNA to apply retroactively and to apply in each jurisdiction prior to that jurisdiction‘s implementation of the Act. Alternatively, Congress could have expressly waived the APA‘s procedural requirements. See Asiana Airlines v. FAA, 134 F.3d 393, 398 (D.C.Cir.1998) (noting that “when Congress sets forth specific procedures that express its clear intent that APA notice and comment procedures need not be followed, an agency may lawfully depart from the normally obligatory procedures of the APA“) (internal quotations and alterations omitted). The fact that Congress delegated signifi-
B.
The Attorney General‘s decision to forgo the required 30-day waiting period before
As courts have explained, “the purpose of the thirty-day waiting period is to give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C.Cir.1996). Thus, “[i]n determining whether good cause exists, an agency should ‘balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.’ ” Id. (quoting United States v. Gavrilovic, 551 F.2d 1099, 1105 (8th Cir.1977)). Because sex offenders were subject to immediate federal prosecution under SORNA when the interim rule was announced on February 28, 2007, see Hatcher, 560 F.3d 222, on that date, with no prior notice, Gould was suddenly committing a crime punishable by up to ten years in prison. See
II.
It is clear that the Attorney General promulgated
must exercise great caution in applying the harmless error rule in the administrative rulemaking context. The reason is apparent: Harmless error is more readily abused there than in the civil or criminal trial context. An agency is not
required to adopt a rule that conforms in any way to the comments presented to it. So long as it explains its reasons, it may adopt a rule that all commentators think is stupid or unnecessary. Thus, if the harmless error rule were to look solely to result, an agency could always claim that it would have adopted the same rule even if it had complied with the APA procedures. To avoid gutting the APA‘s procedural requirements, harmless error analysis in administrative rulemaking must therefore focus on the process as well as the result. We have held that the failure to provide notice and comment is harmless only where the agency‘s mistake clearly had no bearing on the procedure used or the substance of decision reached.
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir.1992) (internal quotations omitted); see also Nat‘l Org. of Veterans’ Advocates, Inc. v. Sec‘y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed.Cir.2001) (“Failure to allow notice and comment, where required, is grounds for invalidating the rule“). I agree. The appropriate remedy in this case is invalidation of the rule and reversal of Gould‘s conviction on the ground that the application of SORNA to Gould relies on the invalid rule.
I recognize that the Attorney General would be within his authority to promulgate the same rule and guidelines after engaging in the APA‘s required notice and comment period. See Riverbend Farms, 958 F.2d at 1487. Indeed, it may be that, at most, minimal substantive changes would arise from requiring the Attorney General to promulgate a new rule in compliance with § 553‘s procedural requirements. Nevertheless, I believe holding the rule invalid and reversing Gould‘s conviction is warranted because allowing the Attorney General to sidestep the requirements of the APA here establishes a dangerous precedent. In cases, for example, where the challengers of a regulation represent familiar economic interests, courts routinely enforce compliance with the APA‘s procedural safeguards. See, e.g., Util. Solid Waste Activities Group v. EPA, 236 F.3d 749; Mobil Oil Corp. v. EPA, 35 F.3d 579 (D.C.Cir.1994); Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141 (D.C.Cir.1992); U.S. Steel Corp. v. U.S. EPA, 595 F.2d 207 (5th Cir.1979). Here, where the adversely affected group—sex offenders—is a despised and marginalized one, the “public interest” is invoked to exclude them from the rulemaking process. The APA does not draw such a distinction.