United States v. Dean

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 28, 2010
No. 09-13115
JOHN LEY
________________________
CLERK

D. C. Docket No. 08-00050-CR-N

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER C. DEAN,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Alabama
_________________________

(April 28, 2010)

Before HULL, WILSON and FARRIS,* Circuit Judges.

*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
FARRIS, Senior Circuit Judge:

Christopher Dean appeals his guilty plea to the charge of having traveled in

interstate commerce and knowingly failing to register as a sex offender under the

Sex Offender Registration and Notification Act, in violation of 18 U.S.C. §

2250(a) (2006). Dean asserts that the Attorney General did not have good cause to

promulgate a rule making SORNA retroactive without notice and comment as

required by the Administrative Procedure Act. We have jurisdiction under 28

U.S.C. § 1291(2006) and 18 U.S.C. § 3742(a)(1) (2006). We affirm.

I.

On January 18, 1994, Dean was convicted of criminal sexual conduct in the

third degree in Minnesota. As a result of the conviction, Dean was required to

register as a sex offender. Dean relocated to Montana in 2003 and registered as a

sex offender there. Dean then subsequently relocated to Georgia and registered in

2005 as a sex offender and provided notice to Montana. Dean traveled to

Alabama sometime between July 2007 and August 2007 and failed to register as a

sex offender there. Dean was arrested in Alabama for failing to register. On

March 14, 2008, Dean was charged in federal district court with one count of

having traveled in interstate commerce and knowingly failing to register as a sex

offender as required by SORNA, in violation of 18 U.S.C. § 2250(a).

2
 Dean moved to dismiss his indictment in the district court, arguing that

SORNA was invalid under the Administrative Procedure Act, non-delegation

doctrine, and Commerce Clause, Ex Post Facto Clause, and Due Process Clause of

the Constitution. The district court denied Dean’s motion to dismiss. Dean then

pled guilty to the charge, was sentenced to time served, and filed this timely

appeal. Dean is not currently incarcerated but is subject to supervised release.

II.

Congress enacted the Sex Offender Registration and Notification Act,

which became effective on July 27, 2006. 42 U.S.C. § 16901 (2006). SORNA

mandated that all states maintain a sex offender registry and set a deadline for

states to implement SORNA before July 27, 2009. 42 U.S.C. §§ 16912, 16924

(2006). SORNA sets out an initial registration requirement for sex offenders in 42

U.S.C. § 16913(b) (2006). Subsection (b) provides that:

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.

Id. SORNA also provides specifically, under § 16913(d): Initial registration of

sex offenders unable to comply with subsection (b) of this section, that:

3
 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 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(b), (d).

On February 28, 2007, the Attorney General promulgated an interim rule

pursuant to § 16913(d) making SORNA retroactive to all sex offenders convicted

prior to SORNA’s enactment. 28 C.F.R. § 72.3 (2007). In promulgating the rule,

the Attorney General invoked the “good cause” exceptions of the Administrative

Procedure Act at 5 U.S.C. §§ 553(b)(3)(B) and (d)(3) and did not have a pre-

promulgation notice and comment period. 72 Fed. Reg. 8894, 8896-7 (2007).

The Attorney General issued a statement of good cause with the rule, noting

the practical dangers of additional sexual assaults and child sexual abuse or

exploitation offenses if SORNA were not made immediately retroactive:

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

4
 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).

Id. at 8896-97. The rule took effect immediately. Id. at 8895. The Attorney

General accepted post-promulgation comments on the rule through April 30, 2007.

Id.

III.

We review a district court’s denial of a motion to dismiss for abuse of

discretion. United States v. Madera, 528 F.3d 852, 855 (11th Cir. 2008).

Additionally, we review “questions of statutory interpretations de novo, although

an agency’s interpretive guidance construing a statute is entitled to deference

‘proportional to its power to persuade.’” Warshauer v. Solis, 577 F.3d 1330, 1335

(11th Cir. 2009). Agency actions under the APA are reviewed under the “arbitrary

5
and capricious standard, which provides the reviewing court with very limited

discretion to reverse an agency decision.” Id. (citations omitted).

Dean argues that (1) SORNA is not a valid exercise of Congress’s

Commerce Clause power because the regulated activity does not have a substantial

effect on interstate commerce nor does it involve or affect the channels or

instrumentalities of interstate commerce; (2) SORNA is an improper delegation of

legislative power; and (3) the government did not notify Dean of the requirement

for him to register as a sex offender. He concedes that we addressed his

arguments on point in United States v. Ambert, 561 F.3d 1202 (11th Cir. 2009).

Ambert rejected both Commerce Clause claims, the non-delegation claim, and the

due process claim. Ambert, 561 F.3d at 1208-14. Furthermore, “only the Supreme

Court or this court sitting en banc can judicially overrule a prior panel decision.”

Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997). As Ambert has not been

overturned by this Court sitting en banc or by the Supreme Court, we are bound by

Ambert. Dean’s constitutional arguments therefore must fail. See Ambert, 561

F.3d at 1208-15; United States v. Brown, 586 F.3d 1342, 1351 (11th Cir. 2009).

IV.

Dean’s remaining argument is that the Attorney General’s rule that SORNA

applied retroactively did not comply with the requirements of the APA. Dean does

6
not dispute that SORNA would apply to him if the rule making it retroactive is

valid. Whether the Attorney General had good cause to bypass the notice and

comment requirements of the APA is an issue of first impression in this Court and

one that has split our sister circuits. See United States v. Gould, 568 F.3d 459 (4th

Cir. 2009), cert. denied, – S. Ct. –, 2010 WL 680575 (2010); United States v.

Cain, 583 F.3d 408 (6th Cir. 2009).

The APA provides that there should be notice and comment before the

promulgation of any rule. 5 U.S.C. § 553 (2006). The purpose of the notice

provision is to “disclose the thinking of the agency and the data relied on.” Lloyd

Nolan Hospital and Clinic v. Heckler, 762 F.2d 1561, 1565 (11th Cir. 1985).

Furthermore, notice and comment “allow[s] an agency to reconsider, and

sometimes change, its proposal based on the comments of affected persons.”

Miami-Dade County v. United States Environmental Protection Agency, 529 F.3d

1049, 1059 (11th Cir. 2008).

The Attorney General concedes that he did not follow the standard notice

and comment procedures required by the APA. Instead, the Attorney General

invoked the “good cause” exceptions contained at 5 U.S.C. §§ 553(b)(3)(B) and

(d)(3). 72 Fed. Reg. 8894, 8896 (2007). The good cause exceptions allow the

agency to skip notice and comment “when the agency for good cause finds (and

7
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.” 5 U.S.C. § 553(b)(3)(B).

We have indicated previously that the good cause exception “should be read

narrowly.” United States Steel Corp. v. United States Environmental Protection

Agency, 595 F.2d 207, 214 (5th Cir. 1979)1; see also Jifry v. F.A.A., 370 F.3d

1174, 1179 (D.C. Cir. 2004) (indicating that the exception should be “narrowly

construed and only reluctantly countenanced”). The exception is, however, “an

important safety valve to be used where delay would do real harm.” United States

Steel Corp., 595 F.2d at 214. In United States Steel Corp., we noted that “[u]se of

the exception has repeatedly been approved, for example, in cases involving

government price controls, because of the market distortions caused by the

announcement of future controls. The exception was also held applicable to

regulations concerning gas stations, where temporary shortages and discriminatory

practices were found to have deprived some users of any supply and led to

violence.” Id. at 214 n.15 (citations omitted).

The Attorney General’s two reasons for good cause both relate to the public

1
Decisions of the Fifth Circuit prior to the Eleventh Circuit’s split from the Fifth Circuit
are binding on the Eleventh Circuit. Bonner v. City of Pritchard, Alabama, 661 F.2d 1206, 1207
(11th Cir. 1981) (en banc).

8
interest. He asserts that the rule (1) provides guidance to eliminate uncertainty;

and (2) prevents the delay in registration of sex offenders who would evade the

registration requirements during the notice and comment period, commit

additional sexual assaults, and be harder to apprehend. 72 Fed. Reg. at 8896-97.

Only two other circuits have addressed this issue, and they reached different

conclusions.2 United States v. Gould, 568 F.3d 459, 470 (4th Cir. 2009), upheld

the Attorney General’s invocation of good cause to bypass the notice and

comment requirements for the rule making SORNA retroactive. The Gould court

held that “[t]here 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.” Id. In particular the court found that “[d]elaying implementation of the

regulation to accommodate notice and comment could reasonably be found to put

the public safety at greater risk. Id. The court also noted that the Attorney

General allowed post-promulgation comments, which were addressed in the

proposed National Guidelines issued in May 2007 and in the final National

Guidelines issued in May 2008. Id.

2
See also United States v. Dixon, 551 F.3d 578, 583 (7th Cir. 2008) (noting in passing
that Dixon’s APA challenge to SORNA was “frivolous” but not discussing the challenge).

9
 The Sixth Circuit disagreed in United States v. Cain, 583 F.3d 408 (6th Cir.

2009). The defendant in Cain was indicted for failing to register no more than 30

days after the February 27, 2007 effective date of the rule making SORNA

retroactive. Id. at 411. The Sixth Circuit concluded that uncertainty was not good

cause because every regulation is designed to provide some type of guidance. Id.

at 421. It also concluded that Congress had already built in some amount of

uncertainty and delay into the design of the statute. Id. The court highlighted the

Attorney General’s own seven-month delay in issuing the regulation. Id. The

court concluded that Congress had already balanced the costs and benefits of delay

in not exempting SORNA from APA procedures. Id. The court contrasted this

situation with a situation where an agency is facing a statutory deadline. Id.

The Cain court then turned to the Attorney General’s safety justification.

Id. at 422. The court noted several cases where safety concerns justified

bypassing the notice and comment period. Id. However, the court indicated that

the safety concern had previously been used when the “emergency situation arose

after the statutory enactment at issue.” Id. It also noted that agencies have

previously given specific reasons “to conclude that [their] regulations

insufficiently protected public safety, and those reasons arose after the existing

regulations went into effect.” Id. The court concluded that the “Attorney General

10
gave no specific evidence of actual harm to the public in his conclusory statement

of reasons, and gave no explanation for why he could act in an emergency fashion

when Congress had not deemed the situation so critical seven months earlier.” Id.

The Cain court also noted the dissent in Gould and indicated that it thought

the dissent properly applied the APA. Id. It is noteworthy that the defendant in

Cain was indicted for failing to register as early as March 28, 2007, which was

less than 30 days after the effective date of the retroactivity rule, effective

February 28, 2007. Id. at 411. The Sixth Circuit took “no position on whether the

same would be true for a defendant who failed to register during a period more

than thirty days after publication of the regulation.” Id. at 424 n.7. Here, Dean

was indicted in March 2008 for failing to register between July and August 2007,

which was more than 30 days after the retroactivity rule’s effective date. So part

of Cain’s holding relating to § 553(d)(3) is inapplicable to this case. Nonetheless,

we recognize that the Sixth Circuit subsequently has now extended Cain to apply

to defendants even though the thirty-day advanced publication requirement is met.

See United States v. Utesch, — F.3d —, 2010 WL 693288 (6th Cir. 2010). Dean

adopts the Cain majority’s and the Gould dissent’s position.

We address the Attorney General’s guidance argument first. We have

addressed a somewhat similar guidance argument previously. In United States

11
Steel Corp., the EPA alleged that an immediate rule without notice and comment

was necessary to provide guidance to the states. 595 F.2d at 214. We found the

need to provide guidance rationale faltered because States already had most of the

information the EPA rule provided, the designations at issue were actually based

on submissions by the States, and the EPA’s role “is limited to reviewing the state

designations and modifying them where necessary.” Id.

In stark contrast, the agency here was granted sole discretion to determine

whether SORNA applies retroactively, and there was no guidance at all in place in

that matter. The guidance rationale is particularly important here as the persons

who were affected by the rule were already convicted of their prior crimes and

need to know whether to register. As the Fourth Circuit said, “[t]here was a need

for legal certainty about SORNA’s ‘retroactive’ application.” Gould, 568 F.3d at

471. While this reason alone may not have established the good cause exception,

it does count to some extent.

We do, however, find unpersuasive the argument that post-promulgation

comments were sufficient to ameliorate the lack of pre-promulgation notice and

comment. We previously rejected this harmless error argument in United States

Steel Corp., 595 F.2d at 214. In particular, we noted that “[s]ection 553 is

designed to ensure that affected parties have an opportunity to participate in and

12
influence agency decision making at an early stage, when the agency is more

likely to give real consideration to alternative ideas.” Id. at 214. We held that

allowing post-promulgation comments to resolve any harm caused by a lack of

notice and comment would render the notice and comment provision toothless. Id.

at 215. The post-promulgation comments allowed by the Attorney General do not

rectify the lack of pre-promulgation notice and comment.

We now turn to the Attorney General’s public safety justification. We

conclude that the public safety argument advanced by the Attorney General is

good cause for bypassing the notice and comment period. Retroactive application

of the rule allowed the federal government to immediately start prosecuting sex

offenders who failed to register in state registries. 73 Fed. Reg. at 38063. In

practical terms, the retroactive rule reduced the risk of additional sexual assaults

and sexual abuse by sex offenders by allowing federal authorities to apprehend

and prosecute them. The retroactive application of SORNA also removes a barrier

to timely apprehension of sex offenders.

The majority in Cain reads two cases, one from the D.C. Circuit and one

from the Ninth Circuit, to hold that the safety prong of the good cause exception

can only be invoked in emergency situations. See Cain, 583 F.3d at 422.

However, the D.C. Circuit has noted that “the exception excuses notice and

13
comment in emergency situations, or where delay could result in serious harm.”

Jifry, 370 F.3d at 1179 (citation omitted and emphasis added). Similarly, the

Ninth Circuit has noted that “notice and comment procedures should be waived

only when delay would do real harm. Emergencies, though not the only situations

constituting good cause, are the most common.” Natural Resources Defense

Council, Inc. v. Evans, 316 F.3d 904, 910 (9th Cir. 2003) (citations and quotation

marks omitted). Both of these decisions are consistent with our precedent in

United States Steel Corp., where we indicated that the good cause exceptions were

“to be used where delay would do real harm.” 595 F.2d at 214. We hold that

there does not need to be an emergency situation and the Attorney General only

has to show that there is good cause to believe that delay would do real harm.

The dissent in Gould argues the retroactive application of SORNA does not

improve public safety because it does not compel additional registration and

“merely allowed the federal government to prosecute under SORNA sex offenders

who were currently violating state registration laws.” Gould, 568 F.3d at 478

(Michael, J., dissenting). This argument is premised on the notion that those who

failed to register are subject to state prosecution already, and that is sufficient for

public safety. We are not persuaded. Public safety is improved by federal law that

allows the federal government to pursue sex offenders regardless of existing state

14
laws providing for state prosecution. SORNA brings to bear the power of federal

law enforcement, including the United States Marshals Service, to assist in

locating and apprehending sex offenders who fail to register. See 42 U.S.C. §

16941. The additional criminal sanction also increases the likelihood of

registration. Furthermore, Congress has already made the judgment that a federal

law for tracking sex offenders, in addition to existing state law, would improve

public safety.

Another argument advanced in the Gould dissent is that Megan’s Law, 42

U.S.C. § 14071, sufficiently protects public safety because it allows the federal

government to prosecute sex offenders who fail to register under a state’s sexual

offender registration program and who change their address to another state. See

42 U.S.C. § 14072(g); Gould, 568 F.3d at 477-78 (Michael, J., dissenting). But

Megan’s Law’s scope is substantially narrower and less comprehensive than

SORNA’s.

First, SORNA expands the definition of sex offender to include previously

uncovered offenders including foreign offenders and some juvenile offenders.

Compare 42 U.S.C. §§ 16911(5), (7), (8) with 42 U.S.C. § 14071(3). Second, the

penalties imposed under Megan’s Law are substantially more lenient than the

penalties under SORNA. The penalty for a violation of Megan’s Law is a

15
maximum of one year in prison for the first offense and ten years for second and

subsequent offenses. 42 U.S.C. § 14072(i). SORNA’s penalty provision allows

for a maximum of ten years’ imprisonment regardless. 18 U.S.C. § 2250(a)(3).

SORNA also adds additional punishment if the sex offender commits a crime of

violence. This additional punishment is a mandatory minimum of five years in

prison with a statutory maximum of 30 years. 18 U.S.C. § 2250(c). These

distinctions make SORNA a farther reaching statute and increase public safety.

The majority in Cain also reasoned that Congress built in a period of delay

and the Attorney General delayed seven-months; therefore delay cannot constitute

good cause. Cain, 583 F.3d at 421. We disagree. All Congressional directives to

an agency to implement rules are subject to delay as the agency considers the rule

and then promulgates it. If Congress were required to create the substantive

administrative rules by itself to avoid notice and comment, then the good cause

exception would be meaningless. An agency could never demonstrate good cause

since delay is inevitably built in as the agency brings its expertise to bear on the

issue. The question is whether further delay will cause harm, and here it was

reasonably determined that waiting thirty additional days for the notice and

comment period to pass would do real harm.

The final argument advanced against bypassing notice and comment is that

16
“the harm to the general public would result from delay assumes that it was

inevitable that [the Attorney General] would declare that SORNA applied

retroactively. See Gould, 568 F.3d at 479 (Michael, J., dissenting). This is true of

any rule that bypasses the notice and comment provision. The harm to the public

from delay is premised on the promulgated rule staying as is even through the

notice and comment phase. This argument is also premised on the idea that the

rule creates the harm. Id. (arguing that “[i]f the Attorney General had promulgated

a rule that SORNA does not apply to past sex offenders . . ., no possible harm to

the public would have resulted). However, the harm exists already. Sex offenders

are not registering with state jurisdictions. Since the good cause exception already

assumes that the regulation will remain in place, this argument is not a reason to

reject an invocation of the exception.

The Attorney General had good cause to bypass the Administrative

Procedure Act’s notice and comment requirement.

AFFIRMED.

17
WILSON, Circuit Judge, concurring in the result:

The Attorney General failed to show good cause to avoid the notice and

comment requirements of the Administrative Procedure Act. At oral argument, the

government conceded that at the time of his arrest Dean could have been charged

with failing to register under either of two existing laws. The first was the

Alabama law that provides for up to ten years in prison1—a sentence as long as the

one provided by SORNA. The second was “Megan’s Law,” the federal law that

provides for up to one year in prison.2 The government’s concession highlights

the lack of an emergency or threat of real harm attending the promulgation of the

regulation. There was little if any support for the Attorney General’s public safety

justification that notice and comment “would impair immediate efforts to protect

the public from sex offenders who fail to register through prosecution and the

1
Community Notification Act, Ala.Code § 15-20-20 et seq. Since 2005, § 15-20-23(a)
has made the failure to register a Class C felony, which is punished by between one year and one
day, and ten years in prison, Ala.Code § 13A-5-6(a)(3).
2
Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration
Program, 42 U.S.C. § 14071 et seq., was amended May 17, 1996 by Pub. L. No. 104-145, 110
Stat. 1345 (“Megan’s Law”). For simplicity’s sake, I will hereafter refer to this amended statute
as Megan’s Law. Since 1998, 42 U.S.C. § 14072(i) has provided for up to one year
imprisonment for the first offense of knowingly inter alia failing to register in a new state within
ten days of moving there from a state in which registration had been required, 42 U.S.C. §
14072(g)(3)(A)–(B). The second offense carries up to ten years in prison. Id. § 14072(i)(4).

18
imposition of criminal sanctions.”3 The issue is not whether sex offenders should

register, but rather whether the addition of one more layer of federal protection

atop a substantial quilt of existing state and federal laws merited emergency

treatment. Administrative law imposes the doctrine of harmless error, however,

and because I conclude Dean suffered no prejudice, I concur with the majority’s

decision to uphold his conviction.

I. The Attorney General’s Claims of Emergency Fell Short

While I take seriously Congress’s mandate that sex offenders register their

whereabouts, I accord equal respect to Congress’s requirement that executive

agencies provide notice and accept comment before binding this nation with their

rules. The majority opinion quotes but does not give due weight to our circuit’s

law requiring us to construe narrowly the good cause exceptions to notice and

comment.4 As I stated above, the existence of stringent state and federal criminal

sanctions on the books at the time the regulation was promulgated obviated the

3
Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8894,
8896 (Feb. 28, 2007) (codified at 28 C.F.R. § 72.3) (emphasis added). Likewise, at oral
argument, the government stated that “protection of the public” was the best argument for
avoiding notice and comment.
4
To be precise, I note that there are two “good cause” exceptions at issue here, and that
courts have sometimes held the more detailed one for notice-and-comment at 5 U.S.C.
§ 553(b)(3)(B) to be more demanding than the one for pre-enactment waiting period at
§ 553(d)(3). Am. Fed’n of Gov’t Employees v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981).
The difference is not material here.

19
case for an emergency.5 Indeed, every state already had its own registration law.6

Moreover, the majority opinion misapprehends the legal apparatus of sex offender

registration and the federal government’s role in it.

The majority opinion cites “the power of federal law enforcement, including

the United States Marshals Service,” as a reason to augment the federal

prosecutorial arsenal without notice and comment. But in this case the Prattville

Police Department received the initial tip about Dean and arrested him. That local

and not federal law enforcement made the case is hardly anomalous. Local and

state law enforcement shoulder much of the burden of registering and tracking sex

5
It was noted at oral argument that the APA does not use or define the word emergency
for these purposes. The word does appear in the case law. See, e.g., Block, 655 F.2d at 1154;
Am. Trucking Ass’n, Inc. v. U.S., 688 F.2d 1337, 1348 (11th Cir. 1982), rev’d on other grounds
sub nom. I.C.C. v. Am. Trucking Ass’ns, Inc., 467 U.S. 354, 371, 104 S. Ct. 2458, 2467 (1984).
This fine point does not change my analysis. Whether one uses the label emergency, threat of
real harm, threat of serious harm, or good cause, the same essential question abides: what facts
did the Attorney General present as creating a good reason to bypass notice and comment?
6
Press Release, U.S. Dep’t of Justice, Department of Justice Announces Final National
Guidelines for Sex Offender Registration and Notification (July 1, 2008), available at
http://www.ojp.gov/newsroom/pressreleases/2008/smart08019.htm. Perhaps this fact helps
explain why few states have so far made their programs compliant with SORNA—only Ohio and
the Umatilla and Yakama confederated tribes have done so. Office of Justice Programs, U.S.
Dep’t of Justice, SMART Office Highlights, http://www.ojp.usdoj.gov/smart/ (last visited Apr.
12, 2010). In passing SORNA, Congress gave the states three years to comply, with up to two
one-year extensions in the discretion of the Attorney General. 42 U.S.C. § 16924. The Attorney
General granted the first one-year extension on May 26, 2009. Order No. 3081-2009. To be
sure, our circuit has carefully distinguished a state’s SORNA obligation to comply from an
individual sex offender’s SORNA obligation to register, United States v. Brown, 586 F.3d 1342,
1348–49 (11th Cir. 2009). Yet neither Brown, nor the plain text of SORNA, nor the states’ slow
progress toward compliance, reveal anything suggesting emergency treatment for the regulation.

20
offenders.7 In the last fifteen years, Congress has stepped up its role, but no one

would argue Congress took over the job from the states. In any event, had the

U.S. Marshals found Dean first, they were already empowered to charge him under

Megan’s Law. While SORNA undoubtedly offers benefits unique to a nationwide

clearinghouse of information, the U.S. Marshals offer no systemic punch to

SORNA, much less assistance justifying the avoidance of notice and comment.

The emergencies cited by the majority opinion highlight the extent to which

this case did not present an emergency or threat of real harm. One example given

was price controls. Advance notice of price controls is harmful precisely because

the advance notice spurs people to price-gouge, hoard, and engage in all the other

market dysfunctions that price controls are supposed to cure in the first place. See

U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 n.15 (5th Cir. 1979), reh’g granted,

598 F.2d 915, 916 (5th Cir. 1979). While no one here has suggested, of course,

7
Indeed, for every sex offender in a federal prison, there are at least ten in state prisons.
Compare Federal Bureau of Prisons, Quick Facts About the Bureau of Prisons,
http://www.bop.gov/about/facts.jsp#4 (last updated Feb. 27, 2010) (noting 7,900 federal
prisoners with convictions for sex offenses), with Lawrence A. Greenfeld, Bureau of Justice
Statistics, U.S. Dep’t of Justice, Sex Offenses and Offenders 22 (1997), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/SOO.PDF (estimating 88,100 state prisoners in 1994 for
rape and sexual assault convictions). Federal authorities rely on the state registration systems in
numerous ways. For example, in this case and in other SORNA appeals, the government
routinely cites the notices provided by state sex offender registration programs as sufficient to
defeat defendant’s due process challenges. See, e.g., Appellee’s Br. 13 n.11; Brown, 586 F.3d at
1351.

21
that advance notice of the regulation would aggravate the problem of unregistered

sex offenders, the Attorney General has failed to explain why rushed promulgation

would solve the problem. In short, the example of price controls does not help the

government here.

Other emergencies that other courts have upheld as a basis for good

cause—a problem arising after the passage of a statute, such as a rash of tour

helicopter accidents claiming four lives, Haw. Helicopter Operators Ass’n v. FAA,

51 F.3d 212, 214 (9th Cir. 1995) (quoting U.S. Steel, 595 F.2d at 214); or a

daycare food rule passed under clear pressure from Congress for quick action,

Petry v. Block, 737 F.2d 1193, 1200–01 (D.C. Cir. 1984)—also fail to track the

facts here. Thus, the Attorney General’s case for an emergency or threat of serious

harm should be rejected. The good-cause exception, my late colleague Judge

Godbold wrote, should not be used “to circumvent the notice and comment

requirements whenever an agency finds it inconvenient to follow them.” U.S.

Steel, 595 F.2d at 214.8

8
The majority opinion gave little credit to another justification from the Attorney
General: a desire to provide guidance justified emergency treatment. The argument may not
deserve even that much credit. In his powerful dissent in United States v. Gould, Judge Michael
noted that an agency that wishes to eliminate uncertainty should not label its regulation an
“interim rule” or issue a call for post-promulgation comments, “because the possibility of an
alteration to the interim rule after its promulgation increases rather than eliminates uncertainty.”
568 F.3d 459, 479 (4th Cir. 2009) (Michael, J., dissenting).

22
 The majority opinion, in trying to shore up the Attorney General’s case, also

asserts that there was good cause to avoid notice and comment because SORNA

substantially expanded the Megan’s Law definition of covered offenses. The

definition is hardly anemic, however, notwithstanding the majority opinion’s

description of it as “substantially narrower and less comprehensive” than

SORNA’s.9 The

9
Megan’s Law provides that:

(A) The term “criminal offense against a victim who is a minor” means any
criminal offense in a range of offenses specified by State law which is comparable
to or which exceeds the following range of offenses:

(i) kidnapping of a minor, except by a parent;

(ii) false imprisonment of a minor, except by a parent;

(iii) criminal sexual conduct toward a minor;

(iv) solicitation of a minor to engage in sexual conduct;

(v) use of a minor in a sexual performance;

(vi) solicitation of a minor to practice prostitution;

(vii) any conduct that by its nature is a sexual offense against a minor;

(viii) production or distribution of child pornography, as described in
section 2251, 2252, or 2252A of Title 18; or

(ix) an attempt to commit an offense described in any of clauses (i)
through (vii), if the State--

(I) makes such an attempt a criminal offense; and

(II) chooses to include such an offense in those which are criminal

23
Attorney General, on the other hand, described the SORNA revisions as

strengthening and increasing the effectiveness of sex offender registration, and

eliminating “potential gaps and loopholes under the pre-existing standards.” 72

Fed. Reg. at 8895. Such language bespeaks a fine-tuning, not an emergency. The

majority opinion cites the addition of foreign and some juvenile offenders—an

expansion, to be sure, but hardly a sea change. While I am fully aware of the

generally expansive nature of SORNA,10 my point is that expansion by itself does

offenses against a victim who is a minor for the purposes of this
section.

For purposes of this subparagraph conduct which is criminal only
because of the age of the victim shall not be considered a criminal
offense if the perpetrator is 18 years of age or younger.

(B) The term “sexually violent offense” means any criminal offense in a range of offenses
specified by State law which is comparable to or which exceeds the range of offenses
encompassed by aggravated sexual abuse or sexual abuse (as described in sections 2241
and 2242 of Title 18 or as described in the State criminal code) or an offense that has as
its elements engaging in physical contact with another person with intent to commit
aggravated sexual abuse or sexual abuse (as described in such sections of Title 18 or as
described in the State criminal code).

(C) The term “sexually violent predator” means a person who has been convicted of a
sexually violent offense and who suffers from a mental abnormality or personality
disorder that makes the person likely to engage in predatory sexually violent offenses.

...

42 U.S.C. § 14071(a)(3).
10
Indeed, my colleagues largely share my view of the broader, expansive scope of
SORNA. See, e.g., United States v. Dodge, 11th Cir. 2010, __ F.3d __ (No. 08-10802, March 5,
2010) (en banc) (upholding SORNA registration requirement for an unenumerated conviction
under noncategorical analysis, and noting the expansive nature of SORNA’s definitions of

24
not equal emergency.

The majority opinion also touts the sharp increase in federal penalty, to ten

years under SORNA from one year under Megan’s Law, as a justification for

avoiding notice and comment. This argument actually cuts against the

government, which has no reply to Dean’s bedrock point that notice is particularly

important in matters of criminal liability.11 “Certainly, a criminal prosecution

founded on an agency rule should be held to the strict letter of the APA.” United

States v. Picciotto, 875 F.2d 345, 346 (D.C. Cir. 1989). “[T]he 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).12

Yet, on the day after the Attorney General promulgated its regulation, sex

offenders likely had no clue that their maximum federal penalties for failing to

register had increased overnight from one year to ten. Likewise, many people who

qualifying offenses).
11
In so saying I imply no tolerance for Dean’s despicable acts. Dean was convicted of
third-degree sexual misconduct in Minnesota in 1994 for sexually abusing his step-daughter over
a period of years. Change-of-Plea Tr. 8; Sentencing Tr. 13.
12
Moreover, in United States v. Cain, the Sixth Circuit struck down a SORNA failure-
to-register conviction of a man charged twenty-eight days after rule was promulgated. The court
wrote: “We are aware of no case, other than Gould, in which a circuit court has upheld a criminal
conviction based on a regulation promulgated without thirty days’ advance notice.” 583 F.3d
408, 423–24 (6th Cir. 2009).

25
had no obligation to register under Megan’s Law now faced federal prison time, if

I grant the majority opinion’s point that SORNA greatly expanded the pool of sex

offenders eligible for registration.13 I agree with the majority opinion that the

arbitrary-and-capricious standard probably governs review of the agency action

here,14 and I acknowledge that the standard is deferential. At the same time, I note

the practical ease of denying convicted sex offenders the right to receive notice

that overnight their federal criminal penalties for failing to register had increased

tenfold.

The Attorney General’s statement in the Federal Register concluded that it

13
I note that the majority opinion’s arguments for good cause on the basis of extra help
from the U.S. Marshals, and the expanded scope and enhanced penalties of SORNA, do not
explicitly appear in the 400-word justification that the APA required the Attorney General to
publish as a condition of good cause. Those arguments are at best implicit in the Attorney
General’s justification. See 72 Fed. Reg. at 8896–8897. Courts are not supposed to help an
administrative agency make its case when the agency by itself cannot. In concluding that the
Department of Transportation’s explanation of its air-bag rule rescission was lacking, such that
the agency acted arbitrarily and capriciously, the Supreme Court wrote in State Farm that “[t]he
reviewing court should not attempt itself to make up for such deficiencies; we may not supply a
reasoned basis for the agency’s action that the agency itself has not given.” Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2867
(1983) (citation omitted).
14
See, e.g., Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir. 2007) (“Agency
action is considered arbitrary or capricious if the agency has ‘relied on factors which Congress
has not intended it to consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence before the agency, or is
so implausible that it could not be ascribed to a difference in view or the product of agency
expertise.’”) (quoting State Farm, 463 U.S. at 43, 103 S. Ct. at 2867). At the same time, a
reviewing court is not authorized to substitute its judgment for the agency’s “concerning the
wisdom or prudence of the proposed action.” N. Buckhead Civic Ass’n v. Skinner, 903 F.2d
1533, 1539 (11th Cir. 1990).

26
would “accordingly be contrary to the public interest” to provide notice and

comment under § 553(b)–(c) or the 30-day pre-enactment waiting period under §

553(d). 72 Fed. Reg. at 8897. But the Attorney General’s own APA manual

describes the public-interest exception as one “in which the interest of the public

would be defeated by any requirement of advance notice.” Util. Solid Waste

Activities Group v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001) (quoting U.S. Dep’t

of Justice, Attorney General’s Manual on the Administrative Procedure Act 31

(1947)). The example the manual gives to illustrate the public-interest exception

is price controls, which as I have discussed does not help the government here. In

sum, the Attorney General failed to show good cause to avoid notice and

comment.

II. In Passing SORNA, Congress Factored in Delay

The bottom line is that Congress factored delay into SORNA when it wrote

the law. To this point the majority opinion has no good reply. In drafting SORNA

Congress clearly took the larger view on the problem of unregistered sex

offenders. Congress unquestionably had the power to release the Attorney

General from the requirements of the APA. See Asiana Airlines v. FAA, 134 F.3d

393, 398 (D.C. Cir. 1998). Indeed, Congress could have decided on its own to

make SORNA apply to pre-enactment convictions, instead of delegating that

27
decision to the Attorney General.15 Congress however unambiguously declined to

adopt either option. Congress balanced the costs and benefits of allowing the

Attorney General to determine SORNA’s pre-enactment reach, and in doing so it

countenanced the inevitable delays of administrative rulemaking. See Cain, 583

F.3d at 421; Gould, 568 F.3d at 480–81 (Michael, J., dissenting). Notably, the

Attorney General took seven months from the passage of SORNA to publish its

interim rule. Yet that time-span is absent from the Attorney General’s claims of

emergency timing. What’s more, Congress’s allocation of three years, plus

extensions, to the states to comply with SORNA means Congress did not perceive

an emergency. In short, the intent of Congress as captured in the plain words of

SORNA was not to relieve the Attorney General of the requirement for notice and

comment.

15
In United States v. Madera, a panel of this Court held that SORNA did not apply to
pre-enactment sex offenses until the Attorney General issued its regulation saying as much. 528
F.3d 852, 857 (11th Cir. 2008) (per curiam). The Fourth, Sixth, and Seventh Circuits agreed.
United States v. Hatcher, 560 F.3d 222, 226–229 (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), cert.
granted sub nom. Carr v. United States, 130 S. Ct. 47 (2009), argued, No. 08-1301 (Feb. 24,
2010). However, the Eighth Circuit and the Tenth Circuit, as well as the Attorney General
himself, concluded that on the face of SORNA’s text, SORNA applied to earlier convictions at
the moment of its passage, and that therefore the Attorney General’s regulation served only to
clarify rather than to impose new liability. United States v. Hinckley, 550 F.3d 926, 929–35
(10th Cir. 2008), cert. denied, 129 S. Ct. 2383 (2009) (agreeing with the Attorney General’s
interpretation); United States v. May, 535 F.3d 912, 916–19 (8th Cir. 2008), cert. denied, 129 S.
Ct. 2431 (2009) (same); Applicability of the Sex Offender Registration and Notification Act, 72
Fed. Reg. 8894, 8896 (Feb. 28, 2007) (codified at 28 C.F.R. § 72.3).

28
III. Harmless Error Analysis Dooms Dean’s Appeal

Here, however, Dean’s argument falters. I concur in the result upholding

his conviction because another, equally potent requirement of the APA compels it:

harmless error review. The passage of five months between promulgation of the

regulation and Dean’s arrest rendered harmless the lack of pre-enactment notice

and comment.

“In administrative law, as in federal civil and criminal litigation, there is a

harmless error rule.”16 The APA instructs reviewing courts to take “due account . .

. of the rule of prejudicial error.” 5 U.S.C. § 706. “If the agency’s mistake did not

affect the outcome, if it did not prejudice the petitioner, it would be senseless to

vacate and remand for reconsideration.” PDK Labs. Inc. v. DEA, 362 F.3d 786,

799 (D.C. Cir. 2004). Dean claims prejudice—that without a valid regulation,

there was no basis to charge him in the first place. The analysis however is

narrower. Reversal is not necessary when the error has “no bearing on the

procedure used or the substance of decision reached.” Braniff Airways, Inc. v.

C.A.B., 379 F.2d 453, 466 (D.C. Cir. 1967) (quotation omitted). Because Dean

would stand to benefit here from two parts of the APA—the notice and comment

16
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659–60, 127 S.
Ct. 2518, 2530 (2007) (Alito, J.) (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir.
2004)).

29
provisions of § 553(b)–(c), and the pre-enactment waiting period of § 553(d)—I

discuss any prejudice to him caused by the avoidance of each in turn.

I deal first with the more straightforward issue of pre-enactment delay.

Section 553(d) requires a 30-day lead time from notice to effective date. Here,

five months elapsed between promulgation of the regulation and Dean’s arrest.17

Even if the Attorney General had no good cause to waive § 553(d), Dean was not

prejudiced.

The prejudice analysis for notice and comment involves more. The burden

is on Dean as a petitioner to show that, had he had an opportunity for pre-

promulgation comment under § 553(c), he could have arguably mounted a

“credible challenge” for changing the rule as it affected him. Utility Solid Waste,

236 F.3d at 755 (“Petitioners have presented enough to show that on remand they

can mount a credible challenge to the amended rule and were thus prejudiced by

the absence of an opportunity to do so before the amendment.”). And there was

nothing in Dean’s appellate briefs or his counsel’s presentation at oral argument

that suggested a reason he could have offered that might have persuaded the

Attorney General not to extend SORNA to cover pre-enactment convictions.

17
At this point I go past the Sixth Circuit in Cain, which explicitly took no position
regarding a conviction for failing to register during a time more than thirty days after publication
of the regulation. 583 F.3d at 424 n.7.

30
 The Attorney General did accept post-promulgation comment here, but in

U.S. Steel this Court found that post-promulgation comment did not cure a failure

to provide pre-promulgation comment. 595 F.2d at 214–15. In U.S. Steel, this

Court also denied harmless error analysis to the EPA. Id. at 215. However, U.S.

Steel did not flatly rule out harmless error analysis. It was still available to an

agency, as long as the petitioner failed to show any prejudice. “Absence of such

prejudice must be clear for harmless error to be applicable.” Id.

Moreover, the facts of U.S. Steel differed significantly. In U.S. Steel,

Alabama steel plants were denied the opportunity to comment on EPA air-quality

rulings that had the effect of limiting their ability to expand. Determinations of air

quality and pollution sources naturally involve complex scientific issues open to

various interpretations. Comment from regulated entities is therefore more likely

to have an impact on ultimate agency decisions. Here, though, the decision of the

Attorney General, as far as Dean cared, was binary—either someone with a pre-

enactment offense could be charged, or he couldn’t be. The starker choice

increases Dean’s burden to show how he might have changed the deliberation. In

the absence of any suggestion from Dean how his comments might have changed

the outcome, the sounder conclusion here is that Dean incurred no prejudice from

31
the Attorney General’s failure to accept pre-promulgation comments.18

Additional legal authority supports the conclusion that Dean suffered no

prejudice because he didn’t show what comment he might have made on the

interim rule. See, e.g., Air Transp. Ass’n of Am. v. C.A.B., 732 F.2d 219, 224 n.11

(D.C. Cir. 1984) (panel including then-Judge Scalia) (finding harmless error where

petitioner “[did] not explain what it would have said” had it been given earlier

access to staff studies); Steel Mfrs. Ass’n v. EPA, 27 F.3d 642, 649 (D.C. Cir.

1994) (per curiam) (finding that denial of comment was harmless error when the

agency had “adequate and independent grounds” for the standard it set). And, in

1995 the Administrative Conference of the United States made this

recommendation regarding “good cause” exceptions:

Where an agency has used post-promulgation comment procedures,
responded to significant adverse comments and ratified or modified
the rule as appropriate, the Conference suggests that a reviewing
court generally should not set aside that ratified or modified rule
solely on the basis that adequate good cause did not exist to support
invoking the exemption initially. At this stage, the agency’s initial
flawed finding of good cause should normally be treated as harmless

18
The final regulation, issued by the Attorney General almost a year after Dean’s arrest,
changed little in essential respects. See National Guidelines for Sex Offender Registration and
Notification, 73 Fed. Reg. 38030 (July 2, 2008). The final Guidelines reflected numerous small
changes made in response to adverse comments about retroactivity, id. at 38031, and treatment of
juveniles and tribal issues, id. at 38030, among other topics.

32
 error with respect to the validity of the ratified or modified rule.19

I suggest that these authorities counsel a decision here to uphold the Attorney

General’s interim rule.20

IV. Conclusion

I conclude that while the Attorney General failed to show good cause to

avoid notice and comment, I must find such error harmless, and therefore Dean’s

conviction should stand.21 I recognize that in doing so, I stake out a third position,

one different from both sides of the current split between the Fourth, Seventh, and

Eleventh Circuits on the one side, and the Sixth Circuit. The Supreme Court

19
Adoption of Recommendations, Recommendation 83-2, “The ‘Good Cause’
Exemption from APA Rulemaking Requirements,” 60 Fed. Reg. 43108, 43112 (Aug 18, 1995).
From its founding in 1961, the Administrative Conference of the United States issued
recommendations intended to improve administrative law. Justice Scalia served as chair of the
conference from 1972 to 1974, and Justice Breyer was a conference member from 1990 to 1994.
Congress stripped the conference of its funding in 1995. President Obama recently decided to
reinstate the conference.
20
The Sixth Circuit did not discuss harmless error in United States v. Cain, although its
holding is consistent with a finding of prejudice regarding § 553(d) pre-enactment delay.
Another panel of the Sixth Circuit did discuss harmless error in United States v. Utesch, 596 F.3d
302, 311–13 (6th Cir. 2010), a case that extended Cain’s rationale to a defendant indicted seven
months after the regulation was promulgated. But the Utesch discussion lacks an analysis of
prejudice.
21
Our Court held in United States v. Madera that without a valid regulation, a SORNA
conviction for failing to register for a pre-enactment sex offense could not stand. 528 F.3d at
859. But because I uphold the regulation on harmless error grounds, Madera does not block
Dean’s prosecution. I also note that Madera is factually distinguishable from the instant case
because the defendant there was arrested four months before the Attorney General issued the
regulation. Id. at 854.

33
should resolve these differences.

I am troubled by the precedent the majority opinion sets today. It is now

easier for an administrative agency to avoid notice and comment in our circuit by

claiming an emergency or threat of serious harm, whether or not the facts support

one. As Dean’s counsel pointed out at oral argument, today’s holding will apply

to APA appeals unrelated to SORNA.

For these reasons, I concur in the result.

34