U.S. v. JOHNSON

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 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 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 separate provision of SORNA created a federal criminal offense for traveling interstate and failing to register as a sex offender.

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, 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 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 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; 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.

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 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.

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 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 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] 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 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 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:

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

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 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 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 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:

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 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 sexoffender 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 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 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 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 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 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 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.

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 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 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 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 retroactively116—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 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 rule-making 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 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.

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.