United States v. Johnson

Case: 09-60823 Document: 00511372310 Page: 1 Date Filed: 02/04/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 4, 2011
No. 09-60823
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

UNDRA DEMETRIUS JOHNSON,

Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Mississippi

Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Defendant-Appellant Undra Demetrius Johnson appeals his conviction
under 18 U.S.C. § 2250(a) for failure to register as a sex offender under the Sex
Offender Registration and Notification Act (“SORNA”). He challenges the
validity of the Act and the decision of the Attorney General to apply it to persons
whose convictions for sex crimes predate its enactment.

I.
As part of a plea agreement, Johnson stipulated to the relevant facts. In
1995, Johnson was convicted in a Mississippi court for gratification of lust, a sex
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No. 09-60823

offense. Johnson was sentenced to eight years in prison, four years suspended.
Prior to his release in May 1999, Johnson signed an Acknowledgment of
Convicted Sex Offender’s Duty to Register under Mississippi law. In 2002 and
2004, Johnson signed two additional Mississippi state forms acknowledging his
duty to register. In 2005, Johnson moved from Mississippi to Iowa and signed
Iowa’s Sex Offender Registry Notification of Registration Requirement form.1
In January 2008, Johnson returned to Mississippi and failed to register as a sex
offender with the State of Mississippi.
On January 22, 2009, Johnson was indicted on one count of violating 18
U.S.C. § 2250(a) by traveling in interstate commerce and knowingly failing to
register and update a registration in accordance with SORNA. Johnson moved
to dismiss the indictment on various constitutional grounds, and the district
court denied the motion. Johnson then entered a guilty plea pursuant to a plea
agreement, reserving the right to raise his constitutional challenges on appeal.
Johnson was sentenced to thirty-seven months in prison to be followed by a life
term of supervised release. He filed a timely notice of appeal.

II.
On July 27, 2006, President George W. Bush signed into law the Adam
Walsh Child Protection and Safety Act of 2006.2 Title I of the Act includes
SORNA, which “establishes a comprehensive national system for the registration

1
In 2007, Johnson was convicted under Iowa state law for failure to register as a sex
offender for what appears to be a failure to update his registry.
2
Pub. L. No. 199-248, §§ 101–155, 120 Stat. 587, 590–611 (2006).

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of [sex] offenders,”3 requiring all sex offenders to register their residence and
place of employment using state-based registries. Specifically, the registration
provisions read as follows:
(a) In general
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.

(b) Initial registration
The sex offender shall initially register—
(1) before completing a sentence of imprisonment with respect
to the offense giving rise to the registration requirement; or
(2) not later than 3 business days after being sentenced for
that offense, if the sex offender is not sentenced to a term of
imprisonment.

(c) Keeping the registration current
A sex offender shall, not later than 3 business days after each
change of name, residence, employment, or student status, appear
in person in at least 1 jurisdiction involved pursuant to subsection
(a) of this section and inform that jurisdiction of all changes in the
information required for that offender in the sex offender registry.
That jurisdiction shall immediately provide that information to all
other jurisdictions in which the offender is required to register.

(d) Initial registration of sex offenders unable to comply
with subsection (b) of this section
The Attorney General shall have the authority to specify the
applicability of the requirements of this subchapter to sex offenders
convicted before the enactment of this chapter or its implementation
in a particular jurisdiction, and to prescribe rules for the

3
42 U.S.C. § 16901.

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registration of any such sex offenders and for other categories of sex
offenders who are unable to comply with subsection (b) of this
section.4

A separate provision of SORNA created a federal criminal offense for traveling
interstate and failing to register as a sex offender.
(a) I N GENERAL.—Whoever—
(1) is required to register under the Sex Offender Registration
and Notification Act; . . .
(2)(B) travels in interstate or foreign commerce . . .; and
(3) knowingly fails to register or update a registration as
required by the Sex Offender Registration and Notification Act;
shall be fined under this title or imprisoned not more than 10
years, or both.5

SORNA further directs each state to substantially implement its requirements
or lose ten percent of the state’s funding under the Omnibus Crime Control and
Safe Streets Act.6 SORNA gave local jurisdictions three years to comply and
authorized the Attorney General to grant up to two one-year extensions.7 As a
result, most states will not be in compliance until July 2011.
In contrast to the grace period offered to states, the Attorney General
began enforcing SORNA as though it provided immediate penalties for sex
offenders who failed to register. Many defendants challenged SORNA’s
application to pre-enactment offenders.8 In response, on February 28, 2007,

4
42 U.S.C. § 16913.
5
18 U.S.C. § 2250(a).
6
42 U.S.C. § 16925(a).
7
42 U.S.C. § 16924.
8
See, e.g., United States v. Madera, 474 F. Supp. 2d 1257 (M.D. Fla. 2007).

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seven months after SORNA’s enactment, the Attorney General issued an interim
regulation stating that SORNA’s requirements “apply to all sex offenders,
including sex offenders convicted of the offense for which registration is required
prior to the enactment of that Act.”9 The Attorney General noted that he was
issuing the rule to foreclose the argument that SORNA did not apply to
defendants with convictions before the Act’s enactment, regardless of whether
the statute on its face included them or not. The regulation was issued without
a notice-and-comment period and without a thirty-day waiting period, both of
which are mandated by the Administrative Procedure Act (“APA”).10 The
Attorney General relied upon the good cause exception in the APA to excuse the
lack of notice-and-comment and waiting period.11 He published a justification
for good cause at the time the rule was issued:
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

9
Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8894,
8897 (Feb. 28, 2007); see 28 C.F.R. pt. 72 (2008).
10
5 U.S.C. § 553(b), (c) (stating that notice of proposed rulemaking “shall be published
in the Federal Register” and that the agency “shall give interested persons an opportunity to
participate in the rule making through submission of written data, views, or arguments”); 5
U.S.C. § 553(d) (requiring that a “substantive rule” be published “not less than 30 days before
its effective date”).
11
72 Fed. Reg. at 8896–97; see 5 U.S.C. § 553(b)(B) (creating an exception to the notice
and hearing requirements “when the agency for good cause finds . . . that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the public interest”).

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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 under 5 U.S.C. 553(d).12

The rule took immediate effect. The Attorney General accepted post-
promulgation comments through April 30, 2007, but did not respond to
comments in the Federal Register.13 The regulation published in the Code of
Federal Regulations was identical to the interim rule.14 On May 30, 2007, the
Attorney General issued a notice of rulemaking for the full regulatory

12
72 Fed. Reg. at 8896–97.
13
In December 2010, the Attorney General took steps to convert the “interim” rule from
February 2007 to a “final” rule, which included responding to comments presumably submitted
between February and April 2007. The Attorney General noted that these comments “were
similar to comments received on the portions of the proposed SORNA Guidelines” from May
2007. See 75 Fed. Reg. 81,849, 81,850 (Dec. 29, 2010).
14
Compare 72 Fed. Reg. at 8897, with 28 C.F.R. pt. 72 (2008).

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implementation of SORNA.15 This proposal included a subsection on the
applicability of SORNA to pre-enactment offenders, noting that the Attorney
General had addressed this issue in its earlier rulemaking. Nevertheless, the
Attorney General received public comments on SORNA’s retroactivity and
responded to those comments in the publication of the final SORNA regulations,
which were issued and made effective on July 2, 2008.16

III.
Johnson puts forth seven challenges to his conviction under SORNA. We
review these challenges de novo,17 but our case law forecloses five of these
claims. First, Johnson asserts he never received notice that he was required to
register under SORNA, a denial of due process under the Fifth Amendment.
Johnson knew of his obligation to register as a sex offender in Mississippi but
was not directly notified of the SORNA requirements or increased federal
penalties. Johnson further argues both that SORNA exceeds Congress’s
authority under the Commerce Clause and that by directing the Attorney
General to decide if SORNA applies retroactively, SORNA violates the non-
delegation doctrine. In United States v. Whaley, we rejected nearly identical
claims.18 We conclude that Johnson’s prosecution did not violate due process;

15
72 Fed. Reg. 30,210 (May 30, 2007).
16
73 Fed. Reg. 38,030 (July 2, 2008).
17
See United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999).
18
577 F.3d 254, 260–64 (5th Cir. 2009) (finding that due process was satisfied through
the defendant’s knowledge of his duty to register under state law; SORNA is a valid exercise
under the Commerce Clause; and delegation to the Attorney General was permissible).

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further, SORNA is valid under both the Commerce Clause and the principles of
non-delegation.
Next, Johnson claims that the retroactive application of SORNA violates
the Ex Post Facto Clause because it is punitive, non-civil, and exposes him to
criminal prosecution for non-compliance. We previously addressed this issue in
United States v. Young and rejected the appellant’s challenge to SORNA under
the ex post facto prohibitions of the Constitution.19 Applying our holding to
Johnson, we again find that SORNA does not violate the Ex Post Facto Clause.
Lastly, Johnson argues that SORNA does not apply to him because Mississippi
has not yet implemented SORNA.20 In United States v. Heth, we found that the
defendant was required to register under SORNA regardless of whether the
state had implemented SORNA’s administrative requirements.21 This argument
is foreclosed.
We now address two matters of first impression for this court: (1) whether
SORNA violates the Tenth Amendment by requiring state officials to administer
federal law; and (2) whether the regulations issued by the Attorney General
violated the Administrative Procedures Act.

19
585 F.3d 199, 206 (5th Cir. 2009). In so holding, we noted that Congress delegated
the decision of retroactivity to the Attorney General. Id. at 201. We also operated under the
assumption that the Attorney General’s rulemaking was valid, but no APA claims were before
the court at that time. Id.
20
Mississippi is one of forty-seven states to have requested and received an extension
until July 27, 2011 to substantially implement SORNA. See U.S. Dep’t of Justice, SORNA
Extensions Granted (Aug. 2, 2010), http://www.ojp.usdoj.gov/smart/pdfs/
SORNA_Extensions_Granted.pdf.
21
596 F.3d 255, 259 (5th Cir. 2010).

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IV.
Johnson claims that imposing a federal obligation on sex offenders to
register in state-run registries is an unconstitutional federal encroachment on
state sovereignty. He argues that SORNA requires local law enforcement to
accept registrations through a federally mandated sex offender program,
violating Printz v. United States.22 There, the Court held that “[t]he Federal
Government may neither issue directives requiring the States to address
particular problems, nor command the States’ officers . . . to administer or
enforce a federal regulatory program.” 23
Before turning to the merits, we must consider our own jurisdiction over
this issue and determine whether Johnson has standing to pursue it.24 In
addressing Tenth Amendment standing, some of our sister courts of appeals
have relied on the 1939 decision of Tennessee Electric Power Co. v. Tennessee
Valley Authority, in which the Supreme Court denied a private party Tenth
Amendment standing.25 In Tennessee Electric, private utilities asserted that the

22
521 U.S. 898 (1997) (invalidating a federal law that required local law enforcement
officials to conduct background checks of prospective handgun purchasers).
23
Id. at 935.
24
See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“Without
jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the
law, and when it ceases to exist, the only function remaining to the court is that of announcing
the fact and dismissing the cause.”) (internal quotation marks omitted); Nevares v. San Marcos
Consol. Ind. Sch. Dist., 111 F.3d 25, 26 (5th Cir. 1997) (recognizing that “[f]ederal courts have
no jurisdiction . . . unless a case or controversy is presented by a party with standing to
litigate”).
25
306 U.S. 118, 144 (1939) (“[T]here is no objection . . . by the states, and, if this were
not so, the appellants, absent the states or their officers, have no standing in this suit to raise
any question under the [Tenth] amendment.”); see, e.g., Brooklyn Legal Servs. Corp. B. v. Legal

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Tennessee Valley Authority, a corporation created by Congress, acted to
impermissibly federally regulate purely local matters of electricity sales. This
claim was predicated on state interests in acting as regulatory authorities, but
no states were parties before the Court. Similarly, Johnson’s Tenth Amendment
claim is based on the unconstitutionality of SORNA as it affects the State of
Mississippi, which is not a party to the case.
However, Tennessee Electric’s applicability to Johnson’s case may be
questioned because it assessed standing in the context of the long-since-
repudiated “legal interest” test,26 rather than the modern Article III standing
requirements articulated in Lujan v. Defenders of Wildlife.27 These modern
requirements are: (1) an injury in fact that is concrete and actual or imminent,
(2) a causal connection between the injury and challenged action of the
defendant, and (3) a likelihood (not mere speculation) that the injury would be
redressed by a favorable decision.28 Johnson was injured by being imprisoned
under SORNA; the statute led to his injury; and he would find relief if this court
struck down SORNA under the Tenth Amendment. On this basis, he has
satisfied Lujan’s Article III standing requirements.

Servs. Corp., 462 F.3d 219, 234–36 (2d Cir. 2006); Medeiros v. Vincent, 431 F.3d 25, 33–36 (1st
Cir. 2005).
26
See Ass’n of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153–54 (1970)
(recognizing Article III standing for petitioners and differentiating standing tests based on
prior decisions such as Tennessee Electric).
27
504 U.S. 555, 560–61 (1992).
28
See Lujan, 504 U.S. at 560-61; Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301
F.3d 329, 332 (5th Cir. 2002).

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Our sister circuits are divided over whether, in spite of Lujan, Tennessee
Electric prohibits private parties from challenging the constitutionality of a
federal statute on Tenth Amendment grounds.29 Recently, the Supreme Court
granted certiorari in a case with this precise question: “[w]hether a criminal
defendant convicted under a federal statute has standing to challenge her
conviction on grounds that, as applied to her, the statute is beyond the federal
government’s enumerated powers and inconsistent with the Tenth
Amendment.”30 While this is a weighty constitutional issue, we need not address
it here. Prudential standing principles require that a plaintiff “generally must
assert his own legal rights and interests, and cannot rest his claim to relief on

29
The First, Second, Third, Eighth, and Tenth Circuits have held that private parties
do not have standing to bring such claims. See United States v. Shenandoah, 595 F.3d 151,
161–62 (3d Cir. 2010); United States v. Hacker, 565 F.3d 522, 526 (8th Cir. 2009); Brooklyn
Legal Servs. Corp. B. v. Legal Servs. Corp., 462 F.3d 219, 234–36 (2d Cir. 2006); Medeiros v.
Vincent, 431 F.3d 25, 33–36 (1st Cir. 2005); United States v. Parker, 362 F.3d 1279, 1284 (10th
Cir. 2004). The Seventh and Eleventh Circuits have permitted private parties to assert Tenth
Amendment claims. See Gillespie v. City of Indianapolis, 185 F.3d 693, 700 (7th Cir. 1999),
abrogated on other grounds by District of Columbia v. Heller, 554 U.S. 570 (2008); Atlanta Gas
Light Co. v. U.S. Dep’t of Energy, 666 F.2d 1359, 1368 (11th Cir. 1982). Of these, Shenandoah
and Hacker both addressed the issue in the context of interpreting SORNA, while the
remaining cases answered the question in the course of analyzing other claims. In a Tenth
Amendment case brought by a state that lacked a relevant injury, the Ninth Circuit held
“[o]nly states have standing to pursue claims alleging violations of the Tenth Amendment by
the federal government.” Oregon v. Legal Servs. Corp., 552 F.3d 965, 972 (9th Cir. 2009). In
an unpublished opinion, the Ninth Circuit more explicitly affirmed its position that private
parties lack Tenth Amendment standing. Stop the Casino 101 Coalition v. Salazar, 384 F.
App’x 546, 548 (9th Cir. 2010) (unpublished) (“We also remind STOP that it is the settled law
of this circuit that only states have standing to bring Tenth Amendment claims.”) (citing Legal
Servs. Corp., 552 F.3d at 972).
30
Petition for Writ of Certiorari at I, Bond v. United States, No. 09-1227 (U.S. filed Apr.
9, 2010), 2010 WL 1506717, appeal from 581 F.3d 128 (3d Cir. 2009), cert. granted 131 S. Ct.
455 (2010). We note, however, that the petitioner in Bond predominantly challenges the
criminal statute at issue as exceeding Congress’s authority under Article I. In contrast,
Johnson asserts that SORNA impermissibly interferes with an aspect of state sovereignty.

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the legal rights or interests of third parties.”31 Johnson’s assertion of
Mississippi’s Tenth Amendment rights makes tenuous his prudential standing.
These prudential standing limitations speak to judicial modesty, allowing federal
courts to “avoid deciding questions of broad social import where no individual
rights would be vindicated,”32 but it is an unneeded avoidance when there is a
clear answer to the merits question, as here.33 In a SORNA case similar to
Johnson’s, the Fourth Circuit found that “prudential standing questions may be
avoided in order to decide a case on the merits.”34 Given the pending Supreme
Court decision and the simplicity of the merits of Johnson’s Tenth Amendment
claim, it is appropriate for us to assume without deciding that Johnson has
prudential standing.35
The Tenth Amendment provides that “powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to the

31
Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 80 (1978) (internal
quotation marks omitted).
32
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985) (quoting Gladstone,
Realtors v. Village of Bellwood, 441 U.S. 91, 99–100 (1979)); see also Procter & Gamble Co. v.
Amway Corp., 242 F.3d 539, 560 n.43 (5th Cir. 2001) (quoting Phillips).
33
See Nisselson v. Lernout, 469 F.3d 143, 151 (1st Cir. 2006) (“[The] ban on hypothetical
jurisdiction extends only to issues involving Article III jurisdiction and, hence, Article III
standing. There is no counterpart rule that demands the resolution of objections based on
prudential concerns before other issues can be adjudicated.”); Grubbs v. Bailes, 445 F.3d 1275,
1281 (10th Cir. 2006) (holding that Article III standing issues must be resolved but
“[q]uestions relating to prudential standing . . . may be pretermitted in favor of a
straightforward disposition on the merits”).
34
Kennedy v. Allera, 612 F.3d 261, 270 n.3 (4th Cir. 2010).
35
Although we address Johnson’s standing to bring this claim, the result remains the
same regardless of the Supreme Court’s decision in Bond because of our decision on the merits.

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States respectively, or to the people.”36 It is neither a description of a result nor
a political guide of governance. It is a force, enforceable in the courts as well as
the political arena. In direct terms, relevant here, “Congress cannot compel the
States to enact or enforce a federal regulatory program.” 37
Johnson argues that SORNA impermissibly requires states to accept
federal sex offender registrations. While SORNA orders sex offenders traveling
interstate to register and keep their registration current, SORNA does not
require the States to comply with its directives. Instead, the statute allows
jurisdictions to decide whether to implement its provisions or lose ten percent
of their federal funding otherwise allocated for criminal justice assistance.38 Of
course the Tenth Amendment does not forbid conditioning of federal funding on
a state’s implementation of a federal program.39 It follows that the sex offender
registry bargained for here is a valid exercise of Congress’s spending power.

V.
Turning to the regulations issued by the Attorney General and the
requirements of the Administrative Procedure Act, we again first consider
whether Johnson has standing. The Supreme Court recently granted a writ of
certiorari on the same question that is before us—whether a petitioner “ha[s]

36
U.S. CONST . amend. X.
37
Printz v. United States, 521 U.S. 898, 935 (1997).
38
42 U.S.C. § 16925(a).
39
See South Dakota v. Dole, 483 U.S. 203, 210-11 (1987) (holding that Congress
constitutionally exercised its spending power in conditioning federal highway funding on a
minimum state drinking age).

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standing under [SORNA] to raise claims concerning the Attorney General’s
interim rule.”40 Consistent with our usual practice, we resolve Johnson’s appeal
based on current law.41
With the three elements of constitutional standing at hand,42 we note that
Johnson’s APA claim is a procedural injury—that the Attorney General did not
provide for proper notice and comment. Johnson may assert this claim of
procedural error “without meeting all the normal standards for redressability
and immediacy.”43 As the Supreme Court explained, “one living adjacent to the
site for proposed construction of a federally licensed dam has standing to
challenge the licensing agency’s failure to prepare an environmental impact
statement, even though he cannot establish with any certainty that the
statement will cause the license to be withheld or altered.” 44 “[T]he likelihood
and extent of impact are properly addressed in connection with the merits” in a
harmless error analysis.45 Similarly, Johnson meets the redressability

40
Petition for Writ of Certiorari at i, United States v. Reynolds, No. 10-6549 (U.S. filed
Sept. 14, 2010), appeal from 380 F. App’x 125 (3d Cir. 2010), cert. granted 79 U.S.L.W. 3248
(2011).
41
See, e.g., United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).
42
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (describing the
“irreducible constitutional minimum of standing” as consisting of injury in fact, causation, and
redressability).
43
Id. at 573 n.7.
44
Id.
45
Save Our Heritage, Inc. v. Fed. Aviation Admin., 269 F.3d 49, 56 (1st Cir. 2001) (“A
reasonable claim of minimal impact is enough for standing even though it may not trigger
agency obligations.”); see Richard J. Pierce, Jr., Making Sense of Procedural Injury, ADM IN . L.
REV ., Winter 2010, at 1, 11 (noting that “courts invariably hold that a party has standing
attributable to a procedural injury when it alleges that it was unlawfully deprived of the

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requirement to challenge an APA deficiency by the Attorney General that
subjected him to imprisonment; he need not establish that a favorable decision
by this court would result in a different rulemaking by the Attorney General.
The primary constitutional standing issue in Johnson’s APA claim is
whether his injury was caused by the Attorney General’s action. If the statute
on its face applied SORNA’s requirements to pre-enactment convictions, then
Johnson would be subject to SORNA regardless of the Attorney General’s
rulemaking. Thus, his injury would not be “fairly . . . trace[able] to the
challenged action” of the Attorney General.46 However, if Congress delegated to
the Attorney General the decision of whether to apply SORNA to pre-enactment
offenders, then Johnson’s injury directly stemmed from the Attorney General’s
rulemaking process. It follows that Johnson’s standing to contest the
rulemaking requires that the statute on its face did not order him to comply with
the registration requirements.47
Our sister courts of appeals differ in their conclusions about SORNA’s
reach and its corresponding delegation of authority to the Attorney General.
Five circuits have held that the Act did not apply to offenders with pre-
enactment convictions until the Attorney General issued the regulation.48 In

notice-and-comment rulemaking procedure” but those same courts also “routinely apply the
harmless error rule” to agency APA failures).
46
Lujan, 504 U.S. at 560.
47
See United States v. Hacker, 565 F.3d 522, 528 (8th Cir. 2009) (finding that appellant
challenging SORNA did not have standing to challenge the registration rules on APA grounds
because he was not personally affected by the rules).
48
United States v. Valverde, No. 09-10063, 2010 WL 5263142, *2 (9th Cir. Dec. 27,
2010); United States v. Hatcher, 560 F.3d 222, 226–29 (4th Cir. 2009); United States v. Cain,
583 F.3d 408, 414–19 (6th Cir. 2009); United States v. Dixon, 551 F.3d 578, 582 (7th Cir. 2008),

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addition, our own court has previously endorsed this position with little pause.49
Yet four other circuits have held that the language of the statute itself applied
the provisions to persons with pre-SORNA sex-offense convictions.50 The
Supreme Court acknowledged this conflict but had no occasion to decide the
issue in Carr v. United States.51 However, Justice Alito’s dissent in Carr, joined
by Justices Thomas and Ginsburg, endorsed the delegation interpretation:
When SORNA was enacted, Congress elected not to decide for
itself whether the Act’s registration requirements–and thus
§ 2250(a)’s criminal penalties–would apply to persons who
had been convicted of qualifying sex offenses before SORNA
took effect. Instead, Congress delegated to the Attorney
General the authority to decide that question.52

We agree with the views expressed in Justice Alito’s dissent and with the
Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits—SORNA delegated

rev’d on other grounds, 130 S. Ct. 2229 (2010); United States v. Madera, 528 F.3d 852, 857–59
(11th Cir. 2008).
49
United States v. Young, 585 F.3d 199, 201 (5th Cir. 2009) (per curiam) (“Congress left
it to the Attorney General’s discretion whether SORNA would apply to sex offenders convicted
before the Act’s passage . . . .”). In Young, we addressed whether or not SORNA violated the
Ex Post Facto Clause. Although used to frame the argument, our conclusion with respect to
whether the statute or the Attorney General’s rule did the work to apply the registry
requirements to pre-enactment offenders was peripheral. As such, it “may not have received
the full and careful consideration of the court that uttered it.” Int’l Truck & Engine Corp. v.
Bray, 372 F.3d 717, 721 (5th Cir. 2004) (internal quotation marks omitted).
50
United States v. Fuller, 627 F.3d 499, 504–05 (2d Cir. 2010); United States v.
Shenandoah, 595 F.3d 151, 163–64 (3d Cir. 2010); United States v. May, 535 F.3d 912, 915–19
(8th Cir. 2008); United States v. Hinckley, 550 F.3d 926, 929–35 (10th Cir. 2008).
51
130 S. Ct. 2229, 2234 n.2 (2010).
52
Id. at 2246 (Alito, J., dissenting); see also id. at 2246 n.6 (“The clear negative
implication of that delegation is that, without such a determination by the Attorney General,
the Act would not apply to those with pre-SORNA sex-offense convictions.”).

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authority to the Attorney General to determine the applicability of SORNA to
pre-enactment offenders. The Supreme Court has repeatedly counseled that in
statutory interpretation, “courts must presume that a legislature says in a
statute what it means and means in a statute what it says.”53 Further, “[w]hen
the statutory language is plain, the sole function of courts—at least where the
disposition required by the text is not absurd—is to enforce it according to its
terms.”54 Here, § 16913(d) states “[t]he Attorney General shall have the
authority to specify the applicability of the requirements of this subchapter to
sex offenders convicted before [enactment] . . . .”55 This language is not
ambiguous. Following the plain meaning rule, this phrase delegates to the
Attorney General the decision of whether and how the SORNA registration
requirements apply to offenders with pre-enactment convictions.
We recognize that statutory interpretation is a “holistic endeavor,” 56 and
other circuits have concluded that in context, subsection (d) does not
unambiguously indicate that Congress delegated such wide authority to the
Attorney General.57 The Eighth and Tenth Circuits cite to an unpublished

53
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992).
54
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (internal
quotation marks omitted).
55
42 U.S.C. § 16913(d).
56
United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365,
371 (1988).
57
See Hinckley, 550 F.3d at 934; May, 535 F.3d at 918. The entirety of subsection (d)
reads: “The Attorney General shall have the authority to specify the applicability of the
requirements of this subchapter to sex offenders convicted before [July 27, 2006] or its
implementation in a particular jurisdiction, and to prescribe rules for the registration of any

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Georgia district court opinion in holding that subsection (d) was ambiguous.58
That district court found the statute could be read to include past offenders
within (and not as a separate group from) the broader classification of “other
categories of sex offenders who are unable to comply with subsection (b).” 59 This
reading is not wholly implausible.60 However, the district court went on to find
that the Attorney General did not have authority over offenders who had
previously registered in state registries. The court concluded that since
subsection (b) addressed initial registration, the Attorney General’s authority
in subsection (d) must only include those offenders who were unregistered prior
to SORNA’s enactment. Offenders with pre-SORNA convictions who had
previously registered in state registries would then be required to comply with
subsections (a) and (c) regardless of the Attorney General’s rules addressing
unregistered offenders. The title of subsection (d) becomes prominent in this
view as it provides: “Initial registration of sex offenders unable to comply with
subsection (b) of this section.”

such sex offenders and for other categories of sex offenders who are unable to comply with
subsection (b) of this section.” 42 U.S.C. § 16913(d).
58
United States v. Beasley, No. 07-CR-115-TCB, 2007 WL 3489999, at *4–6 (N.D. Ga.
Oct. 10, 2007).
59
Subsection (b) defines the timeline for when offenders must initially register—either
before completing a prison sentence or no later than three business days after being sentenced,
if the sentence does not include imprisonment. Obviously, sex offenders who completed prison
sentences before SORNA was enacted could not comply with this subsection.
60
Other courts have pointed to the potential problems with this claim. See Cain, 583
F.3d at 415; Hatcher, 560 F.3d at 228 (finding that including pre-SORNA offenders within the
set of “‘other categories of sex offenders’ who are unable to comply with the initial registration
requirements . . . ignores the term ‘other’” and is equivalent to “interpreting a statute that
applies to ‘humans and to other categories of primate who walk on two legs’ as excluding
paraplegic humans”) (quoting Hinckley, 550 F.3d at 951 (McConnell, J., dissenting)).

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We respectfully disagree with this analysis. To conclude that the Attorney
General’s authority is limited to unregistered offenders would require the court
to disregard the first clause of subsection (d). The subsection gives the Attorney
General two powers: (1) to specify the applicability of the subchapter to pre-
enactment offenders; and (2) to prescribe registration rules for those offenders
who cannot comply with subsection (b). Grammatical construction matters in
statutory interpretation.61 If Congress intended the Attorney General to
determine SORNA’s applicability for only those who could not comply with
subsection (b), the sentence would not contain two clear clauses, separated by
both an “and” and a comma. Abiding by normal rules of grammar, this sentence
delegates two responsibilities to the Attorney General.
The subsection’s title does invite confusion to the statutory scheme, but “a
title alone is not controlling.”62 “That the heading of [a section] fails to refer to
all the matters which the framers of that section wrote into the text is not an
unusual fact. That heading is but a short-hand reference to the general subject
matter involved.”63 The general subject matter of § 16901(d) is sex offenders who
cannot comply with SORNA’s requirement that registration be completed before
the end of a prison sentence. Pre-enactment offenders may be included in this
general subject, but the heading alone does not indicate whether SORNA’s

61
See Bloate v. United States, 130 S. Ct. 1345, 1348 (2010) (noting that ignoring
grammar “would violate settled statutory construction principles”); United States v. Ron Pair
Enters., 489 U.S. 235, 241 (1989) (discussing the comma usage in a statute and holding that
interpretation is “mandated by the grammatical structure of the statute”).
62
I.N.S. v. St. Cyr, 533 U.S. 289, 308 (2001).
63
Brotherhood of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528 (1947); see
also Cain, 583 F.3d at 416 (quoting Brotherhood in interpreting SORNA).

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requirements apply to such offenders. Moreover, “headings and titles are not
meant to take the place of detailed provisions of the text. Nor are they
necessarily designed to be a reference guide or a synopsis.”64 For these reasons,
the Supreme Court has held that “the heading of a section cannot limit the plain
meaning of the text.”65 As discussed above, the plain meaning of the text
supports a reading that Congress delegated the Attorney General to determine
whether the requirements would be applied to pre-enactment offenders. The
heading of subsection (d) may not be interpreted to limit that plain text
delegation.
Read in context of the entire Act, it may seem that § 16913 requires all
pre-enactment offenders to register. Specifically, § 16913(a) states that “a sex
offender shall register,” and the statutory definition of a sex offender is “an
individual who was convicted of a sex offense.”66 These broad provisions could
indicate that all convicted offenders, even those convicted prior to SORNA, “shall
register.”67 However, canons of construction resolve this seeming conflict.
“Specific terms prevail over the general in the same or another statute which
otherwise might be controlling.”68 Here, the specific reference to persons

64
Brotherhood of R.R. Trainmen, 331 U.S. at 528.
65
Id. at 529; see also Penn. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 212 (1998) (quoting
Brotherhood).
66
42 U.S.C. § 16911.
67
See Fuller, 627 F.3d at 504–05.
68
D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 (1932) (“General language of a
statutory provision, although broad enough to include it, will not be held to apply to a matter
specifically dealt with in another part of the same enactment.”); see also Green v. Bock
Laundry Mach. Co., 490 U.S. 504, 524 (1989) (“A general statutory rule usually does not

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convicted before enactment found in subsection (d) informs us that those
individuals are controlled by that subsection rather than the broad provision in
subsection (a). Elsewhere in SORNA, all sex offenders may be treated alike, but
§ 16913 specifically differentiates offenders convicted before enactment; we must
acknowledge Congress’s instruction to distinguish this group for the purposes
of this subchapter.69
Some courts have been persuaded by policy and legislative intent
arguments. While we do not find the plain text of this statute ambiguous, courts
are split on the issue, and we consider the congressional intent and policy factors
to ensure the completeness of our analysis. The Tenth Circuit, for example,
concluded that “it was Congress’s desire to create a comprehensive and uniform
registration system among the states to ensure offenders could not evade
requirements by simply moving from one state to another.”70 Yet prior to
SORNA, offenders could not evade the requirements of registration simply by
moving because each state had its own registry system. Moving from Iowa to

govern unless there is no more specific rule.”); In re Nobleman, 968 F.2d 483, 488 (5th Cir.
1992) (citing Ginsberg and holding that specific language prevails over general language).
69
See, e.g., Russello v. United States, 464 U.S. 16, 23 (1983) (comparing language in the
RICO statute and holding that similar less expansive language in one section differs in
meaning from the broader language used in a nearby section).

We also note that SORNA creates a federal crime. Thus, if the statute were
ambiguous, the rule of lenity would apply. Accordingly, we would resolve any ambiguity so
the statute applies “only to conduct clearly covered.” United States v. Lanier, 520 U.S. 259, 266
(1997); United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001). Both the Sixth Circuit and
the Eleventh Circuit noted the rule of lenity in their SORNA decisions. Madera, 528 F.3d at
859 n.7; Cain, 583 F.3d at 417.
70
Hinckley, 550 F.3d at 933.

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Nebraska did not eliminate one’s pre-SORNA registration duties; it made the
offender subject to Nebraska registration law rather than Iowa law.
The Sixth Circuit analyzed the House and Senate bills that were combined
to create SORNA and concluded, as do we, that Congress intended to delegate
to the Attorney General the authority to determine whether SORNA’s
registration requirements applied to pre-enactment offenders.71 Most persuasive
in this analysis was Senate Bill 1086, which specifically contemplated whether
the registration requirements would apply retroactively to pre-enactment
offenders. The parallel provision to § 16913(d) in that bill read:
(8) RETROACTIVE APPLICATION—The
Attorney General shall have the authority to—
(A) specify the applicability of the requirements
of this title to individuals who are covered individuals
based on a conviction or sentencing that occurred prior
to the date of enactment or who are, as of the date of
enactment of this Act, incarcerated or under a non-
incarcerative sentence for some other offense;
(B) specify the applicability of the requirements
of this title to all other individuals who are covered
individuals based on a conviction or sentencing that
occurred prior to the enactment date of enactment of
this Act . . . ; and
(C) specify procedures and methods for the
registration of individuals to whom the requirements of
this title apply pursuant to subparagraph (A) or (B).72

71
United States v. Cain, 583 F.3d 408, 417–19 (6th Cir. 2009). Unenacted bills have
limited persuasive value, but they do provide an insight into the evolution of the language that
became the final statute, which is in question here.
72
S. 1086, 109th Cong. § 104(a)(8) (2005).

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The specifics of the statute closely parallel the construction of the Senate bill,
with section 8B and 8C each comprising one clause of § 16913(d). If the exegesis
into legislative history is to be taken, the Senate draft expresses an intent to
give the Attorney General authority to determine the applicability of the Act to
pre-enactment offenders.
Our colleagues on the Tenth Circuit have asserted that “Congress was
likely concerned with old convictions—offenders who had already served their
sentences and never before had been required to register.”73 Congress had good
reason to be concerned with this group of individuals, and indeed, the second
clause of subsection (d) specifically authorizes the Attorney General “to prescribe
rules for the registration” of those persons. But if that is read to be the entirety
of the work assigned in subsection (d), there is no reason to include the first
clause in the statute. We cannot ignore the plain language of the first clause
based on a hypothesis of congressional intent or logic.
Finally, many courts have been persuaded by policy arguments that
“[t]here would be no reason for Congress to exempt” sex offenders with pre-
SORNA convictions from the registry if the goal was to create a comprehensive
database.74 Yet Congress could have struck for a comprehensive and uniform

73
Hinckley, 550 F.3d at 934.
74
Id.; see also Fuller, 627 F.3d at 505 (“Given SORNA’s objectives, we do not think
Congress was so agnostic as to whether the half million sex offenders convicted prior to
SORNA’s enactment were required to comply with SORNA’s registration requirements as to
grant the Attorney General sole authority over that determination.”). We note that the vast
majority of those 500,000 pre-enactment sex offenders were in compliance with state
registration requirements at SORNA’s enactment. At most, 30% of pre-enactment offenders
did not have their state registrations up-to-date. See 152 Cong. Rec. S8012, S8013 (daily ed.
July 20, 2006) (statement of Sen. Hatch) (explaining that there were half a million registered
sex offenders in the United States and as many as 150,000 with missing information).

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registration system while relying on the Attorney General to define its specifics.
SORNA did not require that the national registry be immediately created. The
Act gave states years to comply with its requirements, and only three states to-
date have complied. Giving the Attorney General authority to determine the
statute’s application to pre-enactment offenders would allow an agency that is
an expert in criminal law to negotiate the details of retroactivity and the
interactions between the pre-existing state systems.
We find relevant the Supreme Court’s discussion in Carr, describing the
background of sex-offender registries.75 There, the Court noted that “federal sex-
offender registration laws have, from their inception, expressly relied on state-
level enforcement.”76 Congress preserved the collaboration between state and
federal resources in SORNA. It is not unreasonable to conclude that Congress
intended the Attorney General to consider whether and how SORNA would
apply to pre-enactment convictions, particularly given the administrative
demands of integrating the state registries into a national program. Even if
Congress’s concern was to locate sex offenders who had failed to register under
state programs, the broader statutory goal still does not determine how we
interpret the individual provision of § 16913. “Vague notions of a statute’s basic
purpose are . . . inadequate to overcome the words of its text regarding the
specific issue under consideration.”77 Congress could have explicitly denoted that
SORNA’s registration requirements and penalties applied to pre-enactment

75
See Carr, 130 S. Ct. at 2238–41.
76
Id. at 2238.
77
Carr, 130 S. Ct. at 2241 (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 261 (1993)).

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offenders, but it did not.78 A belief that such an application would advance the
statute’s broader goals cannot free the interpretive enterprise from plain text.
With our conclusion that § 16913(d) did not automatically include pre-
SORNA offenders, it is evident that Johnson presents a claim of injury resulting
from any failure of the Attorney General to comply with the APA.

VI.
Under the APA, agencies issuing rules must publish notice of proposed
rulemaking in the Federal Register79 and “shall give interested persons an
opportunity to participate in the rule making” by allowing submission of
comments.80 In addition, the APA requires that publication of a substantive
rule “shall be made not less than 30 days before its effective date.” 81 The APA
provides that both of these requirements may be bypassed if “good cause” exists.
The exception states that notice is not required “when the agency for good cause

78
While some courts reason that Congress must have wanted SORNA to include pre-
enactment offenders, one could just as easily assume Congress was uncertain about the fate
of those individuals given courts’ presumptions against retroactivity and the statute’s lack of
explicit language. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)
(“[C]ongressional enactments . . . will not be construed to have retroactive effect unless their
language requires this result.”). Although this court and the majority of other appellate courts
have found that SORNA does not violate the Ex Post Facto Clause, at the time of its
enactment, Congress would have had reason to be concerned that the registration
requirements fit the category of a law “‘that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when committed.’” Stogner v. California, 539
U.S. 607, 612 (2003) (quoting Calder v. Bull, 3 Dall. 386, 390–91 (1798)). As such, Congress
delegated the Attorney General to determine which registration requirements—any, some, or
all—applied to those with pre-enactment offenses.
79
5 U.S.C. § 553(b).
80
5 U.S.C. § 553(c).
81
5 U.S.C. § 553(d).

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finds . . . that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.”82 In executing his authority
under § 16913, the Attorney General failed to comply with either the notice-and-
comment procedures or the thirty-day notice provision, relying on the “good
cause” exception.83
The courts of appeals are divided over whether the Attorney General
properly complied with the APA. The Fourth and Eleventh Circuits did not find
an APA violation, while the Sixth and Ninth Circuits held that the Attorney
General lacked good cause.84 The Supreme Court has acknowledged the conflict
but “express[ed] no view” on the matter.85
We review the Attorney General’s actions using the APA’s standard:
agency action may be set aside if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”86 In so doing, we are
prohibited from substituting our judgment for that of the agency.87 Further, it

82
5 U.S.C. § 553(b); see also S. Doc. No. 248, 79th Cong., 2d Sess. 200 (1946) (noting
that exemptions to notice-and-comment require “[a] true and supported or supportable finding
of necessity or emergency”).
83
72 Fed. Reg. 8894, 8896 (Feb. 28, 2007).
84
Compare United States v. Gould, 568 F.3d 459, 469–70 (4th Cir. 2009), and United
States v. Dean, 604 F.3d 1275, 1278–82 (11th Cir. 2010), with United States v. Cain, 583 F.3d
408, 419–24 (6th Cir. 2009), and United States v. Valverde, No. 09-10063, 2010 WL 5263142,
at *7–8 (9th Cir. Dec. 27, 2010).
85
Carr v. United States, 130 S. Ct. 2229, 2234 n.2 (2010).
86
5 U.S.C. § 706(2)(A); see United States v. Garner, 767 F.2d 104, 115–16 (5th Cir.
1985).
87
Garner, 767 F.2d at 116 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 415 (1971)).

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is well established that the “good cause” exception to notice-and-comment should
be “read narrowly in order to avoid providing agencies with an ‘escape clause’
from the requirements Congress prescribed.”88 In making our decision, we must
rely only on the “basis articulated by the agency itself” at the time of the
rulemaking.89 “Post hoc explanations . . . are simply an inadequate basis for the
exercise of substantive review of an administrative decision.”90
Here, we do not find the Attorney General’s reasons for bypassing the
APA’s notice-and-comment and thirty day provisions persuasive. The Attorney
General asserted that “[d]elay in the implementation of this rule would impede
the effective registration of . . . sex offenders and would impair immediate efforts
to protect the public.”91 He argued that delayed implementation would result in
more sex offenses by “sex offenders that could have been prevented had local
authorities and the community been aware of their presence.” 92 Yet the interim
rule did not distribute new information to local authorities. Rather, it
authorized the federal government to use SORNA to prosecute sex offenders
already in violation of state registration laws. Local authorities could have

88
Garner, 767 F.2d at 120; see also New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir.
1980) (holding that “various exceptions to the notice-and-comment provisions of section 553
will be narrowly construed and only reluctantly countenanced”).
89
Garner, 767 F.2d at 116–17; see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“The reviewing court . . . may not supply a
reasoned basis for the agency’s action that the agency itself has not given.”) (internal quotation
marks omitted).
90
Garner, 767 F.2d at 117.
91
72 Fed. Reg. at 8896.
92
Id. at 8896–97.

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prosecuted most of these offenders before the rule.93 Moreover, Congress could
have expressly waived the APA procedural requirements in SORNA if it feared
those requirements would produce significant harm or excessive delay.94
Congress balanced the costs and benefits of an immediately effective rule against
a more deliberate rulemaking process, and it favored the latter. Without good
cause, we must enforce Congress’s choice in favor of the traditional, deliberative
rulemaking process.
This case differs from the circumstances in American Transfer & Storage
Co. v. Interstate Commerce Commission, where we found the agency had good
cause to bypass APA notice provisions.95 There, the Commission issued proposed
interim rules responding to the Motor Carrier Act, which was “the most
comprehensive piece of legislation affecting the surface non-rail transportation
industry since 1935.”96 Once the statute was enacted, the Commission could not
continue operating as it had before. To comply with the new law, the
Commission issued interim regulations two days after the statute’s enactment.
These new rules allowed the Commission to conduct business in accordance with
the law while final rules could be discussed. Six months later, the Commission

93
See Gould, 568 F.3d at 478–79 (Michael, J., dissenting) (describing the state law
interactions with federal law, including Megan’s Law, which gave the federal government
prosecutorial authority similar to that of SORNA); see also Valverde, 2010 WL 5263142, at *8
(“‘[T]he existence of stringent state and federal criminal sanctions on the books at the time the
[interim] regulation was promulgated obviated the case for an emergency.’” (quoting Dean, 604
F.3d at 1283 (Wilson, J., concurring)) (second alteration in Valverde)).
94
See Asiana Airlines v. FAA, 134 F.3d 393, 398 (D.C. Cir. 1998).
95
719 F.2d 1283 (5th Cir. 1983).
96
Id. at 1286.

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issued its final rules, with some minor modifications based on post-promulgation
comments.
In contrast to American Transfer, SORNA did not disable the Attorney
General or the states from continuing existing sex offender registration policies.
Moreover, the Commission in American Transfer promptly responded to the new
legislation, publishing its interim regulations immediately after the statute was
enacted and completing its notice-and-comment process in six months. Here, the
Attorney General did not publish these “emergency” regulations until after
SORNA had been in effect for seven months. Full notice-and-comment
procedures could have been run in the time taken to issue the interim rules. As
this court has held, the good cause exception should not be used “to circumvent
the notice and comment requirements whenever an agency finds it inconvenient
to follow them.” 97
The Attorney General argued that foregoing notice and comment was
“necessary to eliminate any possible uncertainty about the applicability of the
Act’s requirements” to pre-SORNA offenders.98 However, “desire to provide
immediate guidance, without more, does not suffice for good cause.” 99 Moreover,
the goal of reducing uncertainty is undercut by the request for post-
promulgation comments, which could have resulted in a rule change. “[T]he
possibility of an alteration to the interim rule after its promulgation increases

97
U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir. 1979).
98
72 Fed. Reg. at 8896.
99
Cain, 583 F.3d at 421 (quoting Mobil Oil Corp. v. Dep’t of Energy, 610 F.2d 796, 803
(Temp. Emer. Ct. App. 1979)) (internal quotation marks omitted).

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rather than eliminates uncertainty.”100 Traditional notice-and-comment process
with promptly promulgated final rules was the clearest path to clarify the Act.
Nor does accepting post-promulgation comments excuse compliance with
APA procedures. We have previously found that parties will have a greater
opportunity for influencing agency decision making if they participate at an
early stage, “when the agency is more likely to give real consideration to
alternative ideas.”101 If we allowed post-promulgation comments to suffice in
this case, “we would make the provisions of § 553 virtually unenforceable.” 102
Lastly, the Attorney General’s rule applied federal criminal liabilities to
pre-enactment sex offenders. This is not a rule of minimal import. “Certainly,
a criminal prosecution founded on an agency rule should be held to the strict
letter of the APA.”103 The strict letter requires notice and comment unless there
is good cause. Here, the Attorney General has not sufficiently stated that
following APA procedures would have been “impracticable, unnecessary, or
contrary to the public interest.” He did not have good cause for failing to publish
the rule thirty days before its effective date nor did good cause exist to bypass
the notice-and-comment requirements.

100
Gould, 568 F.3d at 479 (Michael, J., dissenting).
101
U.S. Steel, 595 F.2d at 214.
102
Id. at 215; see also New Jersey v. EPA, 626 F.2d 1038, 1049 (D.C. Cir. 1980). This
conclusion is especially apt in the case before us, as the interim rule is identical to the current
rule.
103
United States v. Picciotto, 875 F.2d 345, 346 (D.C. Cir. 1989).

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VII.
“In administrative law, as in federal civil and criminal litigation, there is
a harmless error rule.”104 The APA demands that courts reviewing agency
decisions under the Act “[take] due account . . . of the rule of prejudicial error.” 105
In this circuit, an administrative body’s APA deficiency is not prejudicial “only
‘when [it] is one that clearly had no bearing on the procedure used or the
substance of decision reached.’”106 Determining whether an APA deficiency is
harmless demands a case-specific inquiry involving “an estimation of the
likelihood that the result would have been different, . . . and a hesitancy to
generalize too broadly about particular kinds of errors when the specific factual
circumstances in which the error arises may well make all the difference.” 107
Here, the Attorney General’s regulations failed to comply with two separate APA
procedures—publishing the rule at least thirty days before the effective date and
following notice-and-comment procedures prior to promulgation. We find both
errors to be harmless in the particular circumstances of this case.
If the effective date of the interim rule had been in compliance with the
APA’s thirty-day notice provision, the rule would have been effective on March
30, 2007. If Johnson engaged in interstate travel and failed to register after that
date, his actions would properly violate the rule regardless of whether the

104
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659–60 (2007)
(quoting PDK Labs., Inc. v. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004)).
105
5 U.S.C. § 706.
106
U.S. Steel Corp. v. EPA, 595 F.2d 207, 215 (5th Cir. 1979) (quoting Braniff Airways,
Inc. v. C.A.B., 379 F.2d 453, 466 (D.C. Cir. 1967)).
107
Shinseki v. Sanders, 129 S. Ct. 1696, 1707 (2009).

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Attorney General had good cause to bypass the thirty-day notice. Here, Johnson
traveled across state lines in January 2008. He was not indicted until January
22, 2009. Even if the Attorney General lacked good cause to waive § 553(d),
Johnson was not prejudiced.
Whether Johnson was prejudiced by the lack of notice-and-comment period
does not yield so quick an answer. In United States Steel Corp. v. EPA, we held
that to apply harmless error it must be clear that the petitioner was not
prejudiced by APA deficiencies.108 There, the EPA failed to provide notice-and-
comment for air-quality regulations limiting Alabama steel plants’ expansion
opportunities. The EPA only provided for post-promulgation comments. We
held that post-promulgation comments were an inadequate substitute for APA
procedures. Moreover, the agency did not have good cause to bypass notice-and-
comment nor could it rely on harmless error, as we could not assume the
petitioners were not prejudiced.
U.S. Steel did not, however, preclude inquiry into whether petitioners were
prejudiced by an agency’s procedure, nor did it assert that an error affecting
procedure could never be harmless. Rather, a court must determine whether it
is clear that the lack of notice and comment did not prejudice the petitioner.
The purpose of notice-and-comment rulemaking is to “assure[] fairness and
mature consideration of rules having a substantial impact on those regulated.”109
The process allows the agency to “educate itself before adopting a final order.” 110
In addition, public notice requires the agency to disclose its thinking on matters

108
595 F.2d at 215.
109
Pennzoil Co. v. Fed. Energy Regulatory Comm’n, 645 F.2d 360, 371 (5th Cir. 1981).
110
Id.

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that will affect regulated parties.111 These goals, however, may be achieved in
cases where the agency’s decision-making process “centered on the identical
substantive claims”112 as those proposed by the party asserting error, even if
there were APA deficiencies. It follows that when a party’s claims were
considered, even if notice was inadequate, the challenging party may not have
been prejudiced.113
An overreaching harmless error doctrine would allow the agency to
inappropriately “avoid the necessity of publishing a notice of a proposed rule and
perhaps, most important, [the agency] would not be obliged to set forth a
statement of the basis and purpose of the rule, which needs to take account of
the major comments—and often is a major focus of judicial review.” 114 These
concerns support the limited role of the harmless error doctrine in
administrative law.115 With respect to SORNA, we can be confident that
Johnson was not prejudiced by the Attorney General’s failure to provide notice,
in part because the interim rule publication addressed counter-arguments and
set forth the basis and purpose of the rule.
While the Attorney General’s preamble to the interim rule did not
articulate good cause for avoiding APA rulemaking procedures, it did thoroughly
engage the issues and challenges inherent in the regulation. Public comment is

111
See United States v. Dean, 604 F.3d 1275, 1278 (11th Cir. 2010).

112
Friends of Iwo Jima v. Nat’l Capital Planning Comm’n, 176 F.3d 768, 774 (4th Cir.
1999).
113
Id.
114
Sugar Cane Growers Co-Op of Fl. v. Veneman, 289 F.3d 89, 96–97 (D.C. Cir. 2002).
115
See U.S. Steel, 595 F.2d at 215.

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preferred and ordinarily is required to draw out counter-arguments. Here, the
Attorney General was able to address objections in the interim rulemaking itself.
After the statute was enacted but before the rule was issued, the Attorney
General believed he had authority to prosecute pre-enactment offenders for
failing to register. While we have disagreed with the Attorney General’s
interpretation of SORNA, in the course of those prosecutions, defense counsel for
various defendants argued that SORNA should not apply retroactively 116 —the
same argument Johnson makes here. The Attorney General considered those
arguments and responded to them in his preamble to the interim rule, stating
that the rule was being issued because sex offenders with pre-enactment
convictions had “devise[d] arguments that SORNA [was] inapplicable to
them.”117 He rejected those arguments, concluding that principles of ex post
facto were not apt because the registration requirements were non-punitive
regulatory measures. Further, the preamble noted that failing to include pre-
enactment offenders under SORNA “would thwart the legislative objective.” 118
Thus, the error in failing to solicit public comment before issuing the rule was
not prejudicial because the Attorney General nevertheless considered the
arguments Johnson has asserted and responded to those arguments during the

116
See, e.g., United States v. Madera, 528 F.3d 852, 854 (11th Cir. 2008) (describing the
facts of the case and noting that the defendant moved from New York to Florida in June
2006—prior to the enactment of SORNA, and was arrested for violating SORNA in October
2006—prior to the issuance of the Attorney General’s interim rule). One month before the
Attorney General issued his interim rule, the district court in Madera held that SORNA on
its face was retroactive. Madera challenged his conviction on the grounds that the Attorney
General’s rule was a “condition precedent” to SORNA’s retroactive enforcement. Id. at 856–57.
117
72 Fed. Reg. 8894, 8896 (Feb. 28, 2007).
118
Id. at 8897.

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interim rulemaking. There is no suggestion that, if given the opportunity to
comment, Johnson would have presented an argument the Attorney General did
not consider in issuing the interim rule.
Other circumstances present also point to harmless error. For example,
unlike the complex regulatory decision of air-quality designations addressed in
U.S. Steel, the Attorney General’s interim rulemaking here involved a yes or no
decision—whether or not to apply SORNA’s registration requirements to pre-
enactment offenders. This rulemaking starkly contrasts with the vast majority
of agency rulemaking, which produces nuanced and detailed regulations that
greatly benefit from expert and regulated entity participation.119 Under those
conditions, a finding of harmless error for inadequate notice-and-comment
procedures may be rare, but as the Supreme Court has instructed, we should be
hesitant to generalize results based on the kind of error. Instead we must focus
on the factual circumstances that point to the proper outcome.120 Given the
binary decision made by the Attorney General, harmless error is more fitting
under these circumstances than in other agency rulemaking.
Moreover, that the final rulemaking process with full APA comment did
not change the Attorney General’s decision cannot be ignored.121 Although it is

119
See United States v. Dean, 604 F.3d 1275, 1288–89 (11th Cir. 2010) (Wilson, J.,
concurring). The initial rulemaking also contrasts with the Attorney General’s later SORNA
rulemaking that delved into more detailed provisions and applications.
120
Shinseki, 129 S. Ct. at 1707.
121
This court continues to recognize the limitations of post-promulgation comments, as
such comments do not ensure affected parties have an opportunity to influence agency
decision-making at an early stage. See U.S. Steel, 595 F.2d at 214. Johnson’s case is unique
because his views were represented in the prosecutions that took place well before the interim
rule was published. Those views were reiterated during the comment period offered for the
final regulations and remained unpersuasive.

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not completely clear that the later invitation for comment extended to
retroactivity as a free-standing issue, that rulemaking process did include
retroactivity as part of its regulatory package. The comments received on
retroactivity did not sway the Attorney General. Rather, the position of the
earlier interim final rule was incorporated into the final publication of the full
guidelines promulgated in July 2008.
Finally, Johnson neither proposes comments he would have made during
a comment period nor did he choose to involve himself in the post-promulgation
comment period. Johnson does not allege that he participated in the Attorney
General’s subsequent rulemaking process that crafted regulations regarding the
more detailed provisions of SORNA, in which the Attorney General also
considered the retroactivity of SORNA, free of APA error.122 While Johnson’s
participation in these alternate comment forums is not required to find
prejudice, his lack of involvement in all stages of administrative decision-making
points to the conclusion that Johnson was not practically harmed by the
Attorney General’s APA failings.123 Moreover, Johnson had constructive notice
that the Attorney General would apply SORNA to pre-enactment offenders when
the Attorney General issued a Federal Register notice for the later rulemaking
in May 2007,124 before Johnson crossed interstate lines and failed to register.

122
See 73 Fed. Reg. 38,030, 38,036 (July 2, 2008). In response to comments about
retroactivity, the Attorney General stated that “no changes have been made in the final
guidelines relating to retroactivity based on comments alleging an adverse effect on sex
offenders.”
123
See Air Transp. Ass’n of Amer. v. Civil Aeronautics Bd., 732 F.2d 219, 224 n.11 (D.C.
Cir. 1984).
124
See 72 Fed. Reg. 30,210, 30,212 (May 30, 2007) (“SORNA’s requirements apply to all
sex offenders, including those whose convictions predate the enactment of the Act.” (citing 28

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In U.S. Steel, we held that absence of prejudice “must be clear” before
applying harmless error.125 Because the Attorney General’s rulemaking process
addressed the same issues raised by Johnson and because Johnson “makes no
showing that the outcome of the process would have differed . . . had notice been
at its meticulous best,”126 we find it is clear that the Attorney General’s APA
violations were harmless error.127

VIII.
For the reasons stated above, we AFFIRM Johnson’s conviction.

C.F.R. pt. 72)); cf. Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384–85 (1947) (“Congress has
provided that the appearance of rules and regulations in the Federal Register gives legal
notice of their contents.”).
125
595 F.2d at 215.
126
Friends of Iwo Jima, 176 F.3d at 774.
127
In so holding, we recognize that our interpretation of SORNA is a position not
previously held by the majority in another circuit. Cf. Dean, 604 F.3d at 1288 (Wilson, J.,
concurring) (endorsing the harmless error doctrine’s applicability to SORNA).

37