 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 26, 2016         Decided February 24, 2017

                        No. 11-3115

                UNITED STATES OF AMERICA,
                        APPELLEE

                             v.

                     ANTHONY T. ROSS,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:10-cr-00276-1)


    Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Tony Axam Jr. and
Rosanna M. Taormina, Assistant Federal Public Defenders,
entered appearances.

    Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was Elizabeth
Trosman, Assistant U.S. Attorney.

   Before: MILLETT and PILLARD, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
                              2

   Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

     Opinion concurring in part, dissenting in part, and
dissenting from the judgment filed by Circuit Judge MILLETT.

     WILLIAMS, Senior Circuit Judge: Anthony T. Ross was
convicted in 1999 of misdemeanor sexual assault. In 2009 he
moved from Washington D.C. to Ohio, and on October 7,
2010 he was indicted for failing to register with local
authorities pursuant to the Sex Offender Registration and
Notification Act (“SORNA”). See 120 Stat. 587, 590 (2006),
42 U.S.C. § 16901 et seq.; 18 U.S.C. § 2250(a). The act,
passed by Congress in 2006, “seeks . . . to make more uniform
and effective” the “patchwork of federal and 50 individual
state [sex offender] registration systems,” Reynolds v. United
States, 132 S. Ct. 975, 978 (2012). In pursuit of that goal,
SORNA imposes federal criminal penalties on a person who is
subject to the act’s registration requirements, who “travels in
interstate or foreign commerce,” and who knowingly fails to
update his registration when required by the act to do so.
§ 2250(a).

     Ross moved to dismiss the indictment, claiming a number
of flaws in its legal basis, two of which he presses before us.
His sexual assault conviction had preceded SORNA’s 2006
enactment, and the Supreme Court has established that
SORNA did not apply to such persons on its own but could be
made applicable only if the Attorney General so “specif[ied].”
Reynolds v. United States, 132 S. Ct. 975, 984 (2012). Ross
argued first that insofar as the Attorney General took steps
before Ross’s alleged SORNA violation to “specify” the act’s
application to pre-SORNA offenders, those efforts were
defective under the Administrative Procedure Act, 5 U.S.C.
§ 551 et seq. Second, he argued that Congress’s vesting the
Attorney General with such authority violated the
                              3

constitutional rule against undue delegation of legislative
authority. See United States v. Ross, 778 F. Supp. 2d 13, 16
(D.D.C. 2011). The district court denied Ross’s motion to
dismiss, and Ross entered a conditional guilty plea, reserving
his right to appeal on the legal issues.

     All the other geographic circuits have addressed the non-
delegation claim and have rejected it. United States v.
Nichols, 775 F.3d 1225, 1231 (10th Cir. 2014), rev’d on other
grounds, 136 S. Ct. 1113 (2016); United States v. Richardson,
754 F.3d 1143, 1146 (9th Cir. 2014); United States v. Cooper,
750 F.3d 263, 271-72 (3d Cir. 2014); United States v.
Goodwin, 717 F.3d 511, 516-17 (7th Cir. 2013); United States
v. Kuehl, 706 F.3d 917, 920 (8th Cir. 2013); United States v.
Sampsell, 541 F. App’x 258, 259-60 (4th Cir. 2013); United
States v. Parks, 698 F.3d 1, 7-8 (1st Cir. 2012); United States
v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United States v.
Guzman, 591 F.3d 83, 92-93 (2d Cir. 2010); United States v.
Whaley, 577 F.3d 254, 262-64 (5th Cir. 2009); United States
v. Ambert, 561 F.3d 1202, 1212-14 (11th Cir. 2009). But see
United States v. Nichols, 784 F.3d 666, 667-77 (10th Cir.
2015) (Gorsuch, J., dissenting from denial of rehearing en
banc). On the view we take of Ross’s APA claims we need
not reach the delegation issue. Concluding that the act did not
apply to pre-SORNA offenders at the time of Ross’s charged
conduct because of the Attorney General’s APA violations,
we reverse the district court ruling and vacate the conviction.

                            ***

    SORNA requires sex offenders to maintain registrations
“where the offender resides, where the offender is an
employee, and where the offender is a student.” 42 U.S.C.
§ 16913; see United States v. Kebodeaux, 133 S. Ct. 2496,
2499 (2013). If a person is convicted of a sex offense after
SORNA’s enactment, he must register under time limits
                               4

specified in the act. And he must keep the registration current
by updating his registration within three business days of any
“change of . . . residence.” § 16913(c).

     For persons convicted before SORNA’s enactment,
however, the act provides that the “Attorney General shall
have the authority to specify the applicability of [SORNA’s]
requirements,” § 16913(d), and the Supreme Court has read
the act not to make its registration requirements applicable “to
pre-Act offenders until the Attorney General so specifies,”
Reynolds, 132 S. Ct. at 984. What is critical for our purposes
is when the Attorney General so specified.

     The most obvious candidate for this specification is a rule
the Attorney General issued in December 2010 after a
rulemaking whose APA compliance is not contested here.
Applicability of the Sex Offender Registration and Notification
Act, 75 Fed. Reg. 81849, 81850/2 (Dec. 29, 2010) (codified at
28 C.F.R. part 72) (the “Final Rule”) (explicitly making
SORNA applicable to “sex offenders convicted . . . prior to
the enactment of that Act” (internal quotation marks
omitted)). But this rule took effect too late to support Ross’s
conviction for failure to update his registration in the wake of
his 2009 move to Ohio.

     The government contends that two earlier actions
sufficed: an interim rule issued in 2007 and “guidelines”
proposed in 2007 and finalized in 2008. We find them
inadequate.

     In 2007 the Attorney General adopted an interim rule
declaring SORNA applicable to pre-enactment offenders.
Applicability of the Sex Offender Registration and Notification
Act, 72 Fed. Reg. 8894, 8897/3 (Feb. 28, 2007) (the “Interim
Rule”). In the preamble, the Attorney General expressed his
view—later rejected by Reynolds—that the requirements for
                                5

pre-SORNA offenders automatically “took effect when
SORNA was enacted on July 27, 2006.” Id. at 8895/3. He
also hedged, stating that he was “exercis[ing] his authority . . .
to specify this scope of application for SORNA, regardless of
whether SORNA would apply with such scope absent this
rule.” Id. 8896/2 (emphasis added). But he issued the rule
without providing for advance notice or inviting comment, as
required by the APA, see 5 U.S.C. § 553(b)-(d), instead
making the rule effective immediately, with provision for
comments thereafter. To justify that shortcut, he invoked the
“good cause” exceptions of § 553(b), (d), specifically the
allowance for instances where providing notice and comment
would be “contrary to the public interest.” Interim Rule, 72
Fed. Reg. at 8896/3-8897/1. He claimed that “immediate
effectiveness” was needed to “protect the public from sex
offenders” by “eliminat[ing] any possible uncertainty about
the applicability of the Act’s requirements.” Id. at 8896/3.
Delay would thwart these goals, he said, “because a
substantial class of sex offenders could evade the Act’s
registration requirements . . . during the pendency of a
proposed rule.” Id. at 8897/3.

     We’ve said that the “‘good cause’ exception . . . is to be
‘narrowly construed and only reluctantly countenanced.’”
Jifry v. F.A.A., 370 F.3d 1174, 1179 (D.C. Cir. 2004) (quoting
Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144
(D.C. Cir. 1992)). We review the agency’s finding of good
cause de novo. Sorenson v. F.C.C., 755 F.3d 702, 706 (D.C.
Cir. 2014). Here the decisions of Congress and the Attorney
General himself bely any claim that there existed such a
pressing need for immediate action as to warrant brushing
aside the statutory notice-and-comment requirements.

     Far from seeking “immediate effectiveness,” Congress
built in at least some delay with its provision for the Attorney
General to “specify” the act’s application to pre-SORNA
                               6

offenders, thereby allowing him, as the Reynolds Court
observed, to work out a wide range of “complexities, lacunae,
and difficulties” that application to pre-SORNA offenders
would entail. Reynolds, 132 S. Ct. at 982. The Court also
observed that Congress had allowed states three years to
implement SORNA’s requirements (extendable by the
Attorney General to five), id. at 981, and that the government
had “overstate[d] the need for instantaneous registration,” id.
at 983. Of course a relaxed statutory schedule (or no deadline
at all) would not militate against dispensing with notice and
comment if some emergency had arisen after enactment, as
did the 9/11 attacks, see Jifry, 370 F.3d at 1179-80, but the
government points to no such unexpected development here.

     The Attorney General’s own behavior also undercuts the
current claim of urgency: as Reynolds observed, he waited
over half a year—217 days—after the effective date of the act
to publish the Interim Rule. 132 S. Ct. at 983. In this context,
the incremental delay entailed by a 30-day comment period
and the requisite time for thinking about comments seems a
very reasonable trade-off—and its denial unreasonable.

     Because the Interim Rule “utter[ly] fail[ed] to comply
with notice and comment,” this error “cannot be considered
harmless if there is any uncertainty at all as to the effect of
that failure.” Sprint Corp. v. F.C.C., 315 F.3d 369, 376 (D.C.
Cir. 2003). The government suggests that its reaching the
same conclusion in the Final Rule and in its SORNA
guidelines (discussed below), despite having received
numerous comments, dispels any uncertainty. That argument
might justify treating the Final Rule as effective. See Federal
Express Corp. v. Mineta, 373 F.3d 112, 120 (D.C. Cir. 2004).
But it is the Interim Rule that the government is using to
justify the indictment for conduct occurring before the Final
Rule; procedurally sound adoption of a rule after the conduct
affected can have no legitimate effect on that conduct. See
                                7

Sorenson, 755 F.3d at 705-06 & n.2. To find an agency’s
short-circuiting of notice-and-comment harmless, we have
relied on true inevitability—cases where to heed adverse
comments the agency would have had to violate the
controlling statute, see City of Portland v. EPA, 507 F.3d 706,
714-16 (D.C. Cir. 2007); Sheppard v. Sullivan, 906 F.2d 756,
762 (D.C. Cir. 1990). More generally, if brute persistence
alone could cure a failure to invite comment, agencies would
have a perverse incentive to disregard the comments they
received once they got around to allowing them. Cf. Mack
Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir. 2012) (if
belated comment-taking cured all error, “agencies would have
no use for the APA”). We join the circuits that have
invalidated the Interim Rule. See United States v. Brewer,
766 F.3d 884, 892 (8th Cir. 2014); United States v. Reynolds,
710 F.3d 498, 524 (3d Cir. 2013); United States v. Valverde,
628 F.3d 1159, 1168-69 (9th Cir. 2010); United States v.
Utesch, 596 F.3d 302, 312 (6th Cir. 2010). But see United
States v. Johnson, 632 F.3d 912, 930, 933 (5th Cir. 2011)
(finding no good cause but error harmless); United States v.
Dean, 604 F.3d 1275, 1282 (11th Cir. 2010) (holding that
Attorney General had good cause to dispense with notice and
comment); United States v. Gould, 568 F.3d 459, 470 (4th Cir.
2009) (same); United States v. Dixon, 551 F.3d 578, 583 (7th
Cir. 2008) (calling attack on lack of notice and opportunity to
comment on Interim Rule “frivolous”), rev’d on other grounds
sub nom. Carr v. United States, 560 U.S. 438 (2010).

    The government next points to the “guidelines” that the
Attorney General finalized in 2008. The Attorney General is
tasked with determining which states have updated their sex
offender registries to comply with SORNA; a state’s failure to
do so entails a federal funding haircut. 42 U.S.C. § 16925(a).
Accordingly, the Attorney General developed guidelines to
“assist[] . . . the states and other jurisdictions in incorporating
the SORNA requirements into their sex offender registration
                               8

and notification programs.” The National Guidelines for Sex
Offender Registration and Notification, 73 Fed. Reg. 38030,
38030/1-2 (July 2, 2008) (the “Final Guidelines”). The Final
Guidelines might be taken to satisfy 42 U.S.C. § 16913(d)’s
requirement that the Attorney General “specify” SORNA’s
retroactive effect. At the head of a section in the Introduction
captioned “Retroactivity,” they explain that the guidelines
“require the application by a jurisdiction of SORNA’s
requirements to sex offenders convicted prior to the enactment
of SORNA . . . .” 73 Fed. Reg. at 38035/3; see also The
National Guidelines for Sex Offender Registration and
Notification, 72 Fed. Reg. 30210, 30212/3-13/1 (May 30,
2007) (the proposed guidelines). Interestingly, here the
Attorney General gave notice and invited comment. 72 Fed.
Reg. at 30210/1. He received abundant response, representing
both state government and sex offender interests, many
arguing against retroactive application, particularly to juvenile
offenders. See E-mail from Wayne Harper, Utah House of
Representatives, to Melanie Bowen, Staff, U.S. Senate &
GetSmart, U.S. DOJ, at 1 & attached letter at 2 (July 31,
2007); Letter from Arthur E. Grim, Chairman, Pa. Juvenile Ct.
Judges’ Comm’n, to Laura L. Rogers, Director, U.S. DOJ, at 2
(July 25, 2007); E-mail from Redacted, to GetSmart, U.S.
DOJ, at 1 (July 31, 2007). Each of the foregoing comments is
available                                                      at
https://web.archive.org/web/20080313001315/http://www.ojp.
usdoj.gov/smart/pdfs/guideline_comments.pdf.

     The Final Guidelines, however, do not appear to
represent an effort to “specify” retroactive application to
offenders as required by Reynolds.          The Guidelines’
retroactivity language, quoted above, merely sets the stage for
the document’s real purpose: spelling out what the states and
other governmental bodies must do to handle the new
registration mandates, including those the Interim Rule
arguably “specified.” See 72 Fed. Reg. at 30212/3 (proposed
                               9

guidelines’ “Retroactivity” discussion noting practical
challenges jurisdictions face in identifying pre-Act offenders);
73 Fed. Reg. at 38031/1 (Final Guidelines “clarifying that
jurisdictions may rely on their normal methods and standards”
to search criminal records for pre-Act offenders who must
register). Thus the Final Guidelines appear to simply
represent the latter half of the Attorney General’s bifurcated
SORNA rulemaking effort, which paralleled SORNA’s “two
sorts” of requirements: (1) specifying offenders’ “registration
obligations . . . as a matter of federal law”; and (2) advising
jurisdictions on incorporating “SORNA standards in their
own” programs. See Interim Rule, 72 Fed. Reg. at 8895/2; see
also id. at 8896/1 (promising to later “issue general guidelines
to provide guidance and assistance to the states . . . in
implementing SORNA”).

     But even if we were to resolve that issue in favor of the
government, the Final Guidelines would still suffer a fatal
flaw: the Attorney General disclaimed any authority to decide
for himself whether SORNA applied to pre-enactment
offenders. Acting before the Reynolds decision, he took the
view that SORNA had applied to pre-SORNA offenders ever
since its enactment. 73 Fed. Reg. at 38046/2 (“SORNA’s
requirements took effect when SORNA was enacted on July
27, 2006, and they have applied since that time to all sex
offenders, including those whose convictions predate
SORNA’s enactment.”). Although he disagreed with the
commenters’ idea that pre-SORNA offenders should be
treated differently, he said that “in any event” he “could not”
depart from Congress’s “legislative judgment that SORNA’s
registration and notification requirements . . . are justified by
the resulting benefits in promoting public safety.” Id. at
38035/3-36/1.

    Where a statute grants an agency discretion but the
agency erroneously believes it is bound to a specific decision,
                              10

we can’t uphold the result as an exercise of the discretion that
the agency disavows. Prill v. NLRB, 755 F.2d 941, 947-48
(D.C. Cir. 1985); see also Peter Pan Bus Lines, Inc. v. Fed.
Motor Carrier Safety Admin., 471 F.3d 1350, 1353-54 (D.C.
Cir. 2006). Obviously the agency hasn’t exercised the
discretion Congress granted, on which exercise the legitimacy
of the outcome depends. As Reynolds explains, Congress
added the “specify” clause so that the Attorney General could
“fill[] potential lacunae (created by related Act provisions)”
and “diminish or eliminate those uncertainties” around
SORNA’s requirements. 132 S. Ct. at 982. Here, the
Attorney General expressly—and erroneously—imputed to
Congress “a legislative judgment” that the public safety
“benefits” of imposing registration on pre-SORNA offenders
outweighed the burdens on sex offenders, leaving no room for
him to balance them. See 73 Fed. Reg. at 38036/1. By the
time of the Final Rule, the Attorney General eased off his
insistence that SORNA automatically established criminal
liability for pre-Act offenders, saying that “Congress at the
very least placed it within the Attorney General’s discretion to
apply SORNA’s requirements to [pre-SORNA offenders] if he
determines (as he has) that the public benefits of doing so
outweigh any adverse effects.” 75 Fed. Reg. at 81850/3.

     The government insists that the Attorney General
exercised his discretion to specify SORNA’s pre-Act reach
despite his “view” that Congress had settled the matter.
Appellee Br. at 21. Agencies can certainly rely on alternative
rationales, provided that they make those alternatives explicit,
as the Attorney General did in the Final Rule. See Nat’l Fuel
Gas Supply Corp. v. FERC, 468 F.3d 831, 839 (D.C. Cir.
2006). But until the Final Rule the Attorney General failed to
pursue that path—he recognized and exercised discretion only
in areas separate from pre-SORNA offenders’ registration
obligations, such as questions of what duties should be
imposed on the states under SORNA to register pre-SORNA
                               11

offenders, juveniles, and offenders convicted abroad. 73 Fed.
Reg. at 38031/1, 38041/1-2.

     The dissent disagrees on this final point and reads the
Attorney General’s decisions defining the states’ obligations
to track pre-SORNA offenders as simultaneously creating
retroactive criminal responsibility for pre-Act sex offenders.
Dissent at 8-10. The dissent’s logic seems to be that a non-
registering sex offender violates SORNA only to the extent
that a SORNA-compliant state program required him to
register. This linkage of state duties with sex offender
obligations, if it were correct, would tend to fill the pre-Final
Rule gap in the Attorney General’s exercise of discretion:
were SORNA-compliant state registration programs necessary
for sex offender liability, it would not be a great leap to regard
guidelines for how those programs must register pre-SORNA
offenders as a sufficient exercise of the Attorney General’s
authority to specify retroactivity.

    But any such linkage is belied by the Reynolds decision
and the government’s conduct. Reynolds emphasized that
SORNA empowered the Attorney General to adopt a rule
applying SORNA to “all preimplementation offenders . . . .
quickly, well before a jurisdiction implements the Act’s
requirements.” 132 S. Ct. at 983.

    Moreover, pace our dissenting colleague, the Attorney
General has acted accordingly, continuously insisting on a
separation between the imposition of criminal liability and the
establishment of SORNA-compliant registration systems. For
example, the government has maintained in this litigation that
sex offender liability is quite independent of a jurisdiction’s
SORNA compliance. Though acknowledging that the District
had no SORNA-compliant system in place at the relevant
time, the government argued (successfully) that Ross had a
federal duty to register as long as his place of residency had a
                                12

registration “procedure in place,” regardless of whether it was
compliant.1 Ross, 778 F. Supp. 2d at 23. Ross’s conviction
depended on that ruling. It is matched by convictions the
government has secured in other circuits when the offender’s
state had neither implemented the act nor provided notice of
SORNA’s obligations. See, e.g., United States v. Elk
Shoulder, 738 F.3d 948, 954-55 (9th Cir. 2013); Felts, 674
F.3d at 603-04 & n.1; United States v. Heth, 596 F.3d 255,
258-60 & n.3 (5th Cir. 2010); United States v. Brown, 586
F.3d 1342, 1350-51 (11th Cir. 2009); Gould, 568 F.3d at 466-
69; United States v. Hester, 589 F.3d 86, 91-93 (2d Cir. 2009).

     There are additional grounds for rejecting the idea that
the Attorney General intended to make sex offenders’
criminal liability under 18 U.S.C. § 2250 track states’
adoption of SORNA-compliant registration systems. The
Attorney General’s Interim Rule, for example, provides: “In
contrast to SORNA’s provision of a three-year grace period
for jurisdictions to implement its requirements, SORNA’s
direct federal law registration requirements for sex offenders
are not subject to any deferral of effectiveness. They took
effect when SORNA was enacted on July 27, 2006, and
currently apply to all offenders in the categories for which
SORNA requires registration.” 72 Fed. Reg. at 8895/3.

   The dissent argues that the Attorney General left states
some slack in how they structure their registration systems
and that these concessions necessarily eased SORNA’s

    1
       Ohio had already implemented SORNA. U.S. Dep’t of
Justice, SORNA Implementation Review: State of Ohio (Sept. 2009).
The government’s argument seems to assume that SORNA required
Ross both to register in Ohio and to “notif[y] the District of
Columbia of his move.” Ross, 778 F. Supp. 2d at 16. Although not
contested by Ross, this latter requirement has since been foreclosed
by Nichols v. United States, 136 S. Ct. 1113, 1116-17 (2016).
                                13

requirements on offenders as well. Dissent at 8-10. The
Attorney General did say that aspects of his retroactivity
guidelines “may” indirectly “limit their effect on” pre-
SORNA offenders. 73 Fed. Reg. at 38036/1. But these
provisions simply reduced the federal burden on states to
actively seek out and register sex offenders with “older
convictions” who are off the justice system’s radar.2 Id. Such
an offender would benefit collaterally, as there would be less
likelihood of state officials taking affirmative steps to rope
him in. And to the extent that some states use the leeway
provided to de facto thwart pre-SORNA offenders’ ability to
register (e.g., not allowing registration under circumstances
applicable to some offenders), those offenders would have a
defense of infeasibility under federal law. 18 U.S.C.
§ 2250(c). But this collateral benefit for offenders could
hardly have been the Attorney General’s intent when he
offered states some relief from the task of physically tracking
down every living pre-SORNA offender.              Instead, the
Attorney General made clear his view—correct or not—that
federal liability would attach to the offender regardless of
whether his state has met, exceeded, or fallen short of
SORNA’s funding conditions. As he put it, “While SORNA’s
requirements apply to all sex offenders . . . the guidelines do
not require jurisdictions to identify and register every such
offender.” 73 Fed Reg. at 38036/1; see id. at 38035/2 (noting
that SORNA “requires a sex offender to register ‘for the full
[federal] registration period’” unless the statutory “clean
record” exception applies).

    2
       An additional purported reduction, the allowance of credit to
pre-SORNA offenders for time elapsed since release from prison,
involved no discretion at all: the Attorney General properly
described it as a simple mathematical outcome of SORNA’s time
“limits on the required duration of registration.” Id. at 38046/3.
                               14

     In short, the Attorney General, from his first official pass
on the meaning and effect of SORNA to the litigation of this
case, has seen two distinct but related domains—the
establishment of criminal liability for pre-Act sex offenders,
and the design of the conditions necessary for states (and
other affected jurisdictions) to secure funding for SORNA
compliance. We all agree that the second has collateral
effects on sex offenders; our dissenting colleague believes that
the Attorney General’s action in the second domain, simply
because of those collateral effects, suffices for exercise of
discretion in the first domain. Had the Attorney General
openly interpreted SORNA the way the dissent does—
requiring “a knowing failure to register under a state system,”
Dissent at 5—we might agree. But because the issue here is
what the Attorney General said he was doing, we have little
choice other than to infer that the government’s words were
serious: that pre-Act sex offenders required to register by
SORNA are guilty of a violation even if the relevant state has
not sought to register the defendant in compliance with
SORNA (though under some circumstances state non-
compliance may give the offender an intent or impossibility
defense). Indeed, the government has successfully prosecuted
for failure to register an offender who lacked notice of
SORNA and whose state didn’t require him to register at all.
United States v. Pendleton, 636 F.3d 78, 85 (3d Cir. 2011).

     Apropos the dissent, its suggestion that our holding will
have “potentially severe and far-reaching” consequences rests
on the idea that even in the Final Rule the Attorney General
failed to “exercise[] his discretion to make a policy judgment
about SORNA’s retroactive application vel non.” Dissent at
14 (first quote), 17 (second). But as we already noted, that
rule did recognize his authority, albeit reluctantly and
contingently: “Congress at the very least placed it within the
Attorney General’s discretion to apply SORNA’s
requirements to [pre-SORNA offenders] if he determines (as
                               15

he has) that the public benefits of doing so outweigh any
adverse effects.” Final Rule, 75 Fed. Reg. at 81850/3.

     A number of other circuits have found that the Final
Guidelines properly specified SORNA’s application to
pre-enactment offenders. But in those cases the principle we
adopted in Prill was not invoked, and their opinions
accordingly focused on other purported deficiencies in the
Final Guidelines. See United States v. Manning, 786 F.3d
684, 686-87 (8th Cir. 2015) (finding that the guidelines “were
an act of substantive rulemaking” and “satisfied the notice and
comment requirements”); United States v. Lott, 750 F.3d 214,
217-21 (2d Cir. 2014) (rejecting claims that the guidelines
were mere interpretive rules and that they failed to follow
notice-and-comment procedures); United States v. Whitlow,
714 F.3d 41, 45-47 (1st Cir. 2013) (rejecting arguments that
the guidelines invoked the incorrect statutory authority and
failed to allow meaningful comment by “‘assum[ing]’
retroactivity”); United States v. Stevenson, 676 F.3d 557, 563-
65 (6th Cir. 2012) (rejecting claim that the guidelines relied
on incorrect statutory authority); Valverde, 628 F.3d at 1160
(holding, without discussion, that the final guidelines made
SORNA applicable to pre-enactment offenders).

    Aside from the Interim Rule and the Final Guidelines, the
government points to no other administrative act that would
have timely created an obligation on Ross’s part to comply
with SORNA’s mandate. This gap defeats the indictment.

                              ***

    The ruling of the district court is reversed, and the
judgment of conviction is vacated.

                                                     So ordered.
     MILLETT, Circuit Judge, concurring in part, dissenting in
part, and dissenting from the judgment: I join in full that
portion of the opinion holding that the Attorney General lacked
good cause to forgo notice and comment when issuing the
Interim Rule, particularly given that he waited 217 days after
the Sex Offender Registration and Notification Act
(“SORNA”), 42 U.S.C. § 16901 et seq., took effect to put that
rule out. See Applicability of the Sex Offender Registration and
Notification Act, 72 Fed. Reg. 8894-01 (Feb. 28, 2007)
(codified at 28 C.F.R. pt. 72). I also agree that the error does
not meet our high standard for harmlessness in this particular
Administrative Procedure Act context. I accordingly agree that
the Attorney General’s Interim Rule did not lawfully “specify”
how the provisions of SORNA apply to offenders like appellant
Anthony Ross, whose offense preceded that law’s enactment.

     That is where my agreement with the majority opinion
ends. Unlike the majority opinion, I would join every other
circuit that has addressed the question and hold that the
Attorney General’s Final Guidelines adequately specified how
and when SORNA would apply to pre-Act offenders, see The
National Guidelines for Sex Offender Registration and
Notification, 73 Fed. Reg. 38030 (July 2, 2008). See also
United States v. Manning, 786 F.3d 684, 686–687 (8th Cir.
2015); United States v. Newton, 74 M.J. 69, 75 (C.A.A.F.
2015); United States v. Lott, 750 F.3d 214, 217–221 (2d Cir.
2014); United States v. Whitlow, 714 F.3d 41, 45–47 (1st Cir.
2013); United States v. Stevenson, 676 F.3d 557, 562–566 (6th
Cir. 2012); United States v. Valverde, 628 F.3d 1159, 1160,
1163 (9th Cir. 2010).

     In my view, the Final Guidelines suffice because they (i)
explicitly announce SORNA’s retroactive application, (ii)
afford affected individuals clear notice of their retroactive
registration obligations, (iii) spell out in detail how and when
retroactivity will operate across divergent state systems, (iv)
limit the requirements for participating jurisdictions to register
                                2
pre-Act offenders in specific circumstances determined by the
Attorney General, and (v) express the Attorney General’s
independent response to and judgment about comments
advocating against retroactivity. Any way you look at it, that
constitutes “specifying” SORNA’s retroactive reach.          I
accordingly would affirm the judgment of conviction in this
case.

                                A

     Congress was explicit that SORNA is meant to apply
retroactively to pre-Act offenders. The Act defines a “sex
offender” as “an individual who was convicted of a sex
offense,” 42 U.S.C. § 16911(1) (emphasis added), and thus
“defines the term ‘sex offender’ as including these pre-Act
offenders.” Reynolds v. United States, 132 S. Ct. 975, 978
(2012) (quoting 42 U.S.C. § 16911(1)). And the general
obligation to register applies to all such “sex offender[s].” 42
U.S.C. § 16913(a)(3); id. § 16917(a) & (b) (directing the
Attorney General to “prescribe rules for the notification of sex
offenders” who have already been sentenced or released from
custody concerning their duty to register).

     Indeed, the statute’s avowed purpose is to establish “a
comprehensive national system for the registration of [sex]
offenders[.]” 42 U.S.C. § 16901 (emphasis added). The
Supreme Court has “recognized that purpose,” emphasizing
that, “in general, the Act’s criminal provisions apply to any pre-
Act offender required to register under the Act who later travels
interstate and fails to register.” Reynolds, 132 S. Ct. at 982
(citing Carr v. United States, 560 U.S. 438, 445–448 (2010));
see id. (“The Act’s history also reveals that many of its
supporters placed considerable importance upon the
registration of pre-Act offenders.”) (citations omitted); see also
id. at 986 (Scalia, J., dissenting) (“[R]egistration of pre-Act
                                  3
offenders was (as the Court acknowledges) what the statute
sought to achieve.”). If that were not clear enough, Congress
announced with moving specificity its desire to protect the
public from those past offenders who had sexually assaulted
seventeen victims identified by name in the Act, such as Jacob
Wetterling, Elizabeth Smart, Megan Kanka, Amie Zyla, and
Pam Lychner. 42 U.S.C. § 16901. 1

     However, Congress also recognized that retroactive
implementation of SORNA’s registration requirements was
easier said than done, and thus that the Act could not
practicably be retroactive immediately upon enactment.
Indeed, the Supreme Court confirmed in Reynolds that
Congress did not intend for SORNA to be instantaneously
retroactive of its own force. Reynolds, 132 S. Ct. at 978, 983–
984. Congress, though, did intend for SORNA to be eventually
retroactive to the extent the Attorney General determined was
“feasible,” Reynolds, 132 S. Ct. at 981. See id. at 983 (rejecting
“instantaneous registration” of pre-Act offenders, in favor of
“implementation delay” while the Attorney General specified
the timing and scope of retroactive operation); id. at 981
(noting Congress’s recognition that “it might not prove feasible
to” make SORNA retroactive “immediately”). Accordingly,
SORNA tasked the Attorney General with (i) determining
when, how, and to what extent SORNA’s requirements could
practicably be applied retroactively, and then (ii) putting into


1
  Highlighting the problem, both Amie Zyla’s and Pam Lychner’s
assailants reoffended upon release. Amie Zyla’s perpetrator was
convicted of two counts of second-degree sexual assault of a child.
State v. Wade, 2008 WI App 172, ¶ 1, 760 N.W.2d 183 (Wis. Ct.
App. 2008). Pam Lychner’s perpetrator was convicted of failing to
register as a sex offender under Texas state law. Kelley v. State, 429
S.W.3d 865, 869 (Tex. Ct. App. 2014).
                                  4
effect Congress’s judgment that SORNA should apply to pre-
enactment offenders where possible.

     Delegating that job to the Attorney General made sense.
SORNA’s goal, after all, was to replace a patchwork of state
and federal registration systems with uniform registration
requirements and to enforce through federal criminal law the
registration obligations of federal sex offenders and non-
federal sex offenders who move across state lines. See
Reynolds, 132 S. Ct. at 978. Recognizing the complexities that
participating jurisdictions would confront in bringing their
systems into conformity with new national standards, Congress
afforded the participating jurisdictions a three-year timeframe
(extendable by the Attorney General to five years) to bring their
systems into compliance. 42 U.S.C. § 16924; see also SORNA
Extensions Granted, U.S. DEP’T OF JUSTICE (Aug. 8, 2010) (the
Attorney General granted extensions to 47 States, 7 territories,
and      184    tribes),    http://ojp.gov/smart/pdfs/SORNA_
Extensions_Granted.pdf (last accessed Feb. 15, 2017). 2

     Given that state- and federal-law conglomeration and the
inevitably varying dates by which jurisdictions would be able
to conform their registration systems with SORNA, Congress
tasked the Attorney General with resolving the “complexities,
lacunae, and difficulties” pertaining to “whether, or how, the
new registration requirements applied” to pre-Act offenders.
Reynolds, 132 S. Ct. at 982. Congress, in other words, charged
the Attorney General with making the rubber meet the road:
the Attorney General had to figure out how and when
SORNA’s retroactivity purpose could realistically be put into

2
 SORNA applies to all fifty States, the District of Columbia, Guam,
American Samoa, Puerto Rico, the Northern Marianas Islands, the
U.S. Virgin Islands, and federally recognized Indian tribes. 42
U.S.C. § 16911(10). I use the term “State” to refer collectively to all
of those covered jurisdictions.
                                5
effect while navigating a labyrinth of differing and evolving
registration systems spanning dozens of jurisdictions and
implicating multiple and varying categories of past offenders.
That assignment to the Attorney General “efficiently resolve[d]
what Congress may well have thought were practical problems
arising when the Act sought to apply the new registration
requirements to pre-Act offenders[,]” given the need “to make
more uniform a patchwork of pre-existing state systems” and
to “newly register[] or re-register[] a large number of pre-Act
offenders.” See Reynolds, 132 S. Ct. at 981 (internal quotation
marks omitted).

     The Attorney General’s assignment also comported with
SORNA’s statutory design as a program of cooperative
federalism. In the Act, Congress encouraged States, backed up
by the offer of federal funding, to bring their own registration
systems up to federally identified standards and to integrate
their systems into a uniform national program that Congress
concluded would more effectively monitor sex offenders once
released. As a consequence of that statutory structure, attaining
retroactive registration is heavily dependent on the type of
records and registration obligations that each State has in place.
That, in fact, is why SORNA’s criminal prohibition for non-
federal offenders like Ross is defined in terms of a knowing
failure to register under a state system. See 18 U.S.C.
§ 2250(a) (making it a crime to “knowingly fail[] to register or
update a registration” within a state system); 42 U.S.C.
§ 16913(a) (“A sex offender shall register, and keep the
registration current, in each jurisdiction where the offender
resides[.]”).

    While SORNA thus gives the Attorney General latitude to
configure the statute’s intended retroactive reach, the Reynolds
Court was unanimous in concluding that the Attorney
General’s specification judgments were to be ones of timing,
                                 6
scope, and logistical implementation: it would be entirely
“unrealistic,” the Court held, for the Attorney General to make
a policy call against retroactive operation or to otherwise
“refuse to apply the new requirements to pre-Act offenders”
given the statute’s explicitly retroactive text. Reynolds, 132 S.
Ct. at 984; see id. at 986 (Scalia, J., dissenting) (“[I]t is simply
implausible that the Attorney General was given discretion to
determine whether coverage of pre-Act offenders (one of the
purposes of the Act) should exist.”).

     To be clear, describing the Attorney General’s job as one
of timing, scope, and logistical implementation is not meant to
understate the import of that assignment. As Reynolds held,
Congress’s delegation to the Attorney General meant that
SORNA’s registration requirements could not be applied to
pre-Act offenders at all “until the Attorney General so
specifies.” 132 S. Ct. at 984. But in deciding whether the
Attorney General has fulfilled that specification task, it is
critical to remember that (i) the Attorney General was not
charged with making a broad or categorical policy judgment
about whether or not the statute should apply to pre-Act
offenders; (ii) the range of his judgment in implementing the
statute was at all times hemmed in by the statute’s background
directive that the registration obligation was designed to apply
to pre-Act offenders eventually to the extent feasible; and (iii)
the heart of retroactive operation—the establishment of
registration processes with which past offenders would be
expected to comply—largely had to take effect within the
dozens of state and local registration systems with whom the
Attorney General was coordinating. 3



3
  This more calibrated understanding of the Attorney General’s
specification task as working out congressionally intended
                                  7
                                  B

     In my view, the Final Guidelines accomplish that distinct
task of “specify[ing]” when and how SORNA applies to which
pre-Act offenders through more than fifty state and local
registration systems.

     First, as the Supreme Court has already observed, the Final
Guidelines themselves—separate and apart from the statute—
say explicitly that “the Act’s requirements apply to ‘all sex
offenders,’ including all preimplementation offenders.”
Reynolds, 132 S. Ct. at 983 (quoting 73 Fed. Reg. at 38036)
(citation omitted). The Final Guidelines thus provide clear
notice of the Attorney General’s intended retroactivity for pre-
Act offenders.

    Second, the Attorney General made the independent
decision in the Final Guidelines to narrow the States’
obligations to register certain categories of pre-enactment

retroactivity over time also ameliorates to some extent the
constitutional concerns that some have recognized might arise if
SORNA were read to afford the Attorney General unfettered
discretion to determine whether a criminal law applies at all to half a
million people. See Reynolds, 132 S. Ct. at 986 (Scalia, J.,
dissenting); United States v. Nichols, 784 F.3d 666, 669–672 (10th
Cir. 2015) (Gorsuch, J., dissenting from denial of rehearing en banc);
see generally Clark v. Martinez, 543 U.S. 371, 380–381 (2005)
(“[W]hen deciding which of two plausible statutory constructions to
adopt, a court must consider the necessary consequences of its
choice. If one of them would raise a multitude of constitutional
problems, the other should prevail[.]”); Michigan Gambling
Opposition v. Kempthorne, 525 F.3d 23, 33 (D.C. Cir. 2008) (“[T]he
Supreme Court has ‘giv[en] narrow constructions to statutory
delegations that might otherwise be thought to be
unconstitutional[.]’”) (second alteration in original) (citations
omitted).
                                8
offenders, stating that, “[w]hile SORNA’s requirements apply
to all sex offenders, regardless of when they were convicted,”
States could choose to forgo registering those sex offenders
“who have fully left the system and merged into the general
population at the time the jurisdiction implements SORNA, if
they do not reoffend,” without having their federal funding
reduced. 73 Fed. Reg. at 38036. The Attorney General also
determined that a State could, consistently with SORNA,
“credit a sex offender with a pre-SORNA conviction with the
time elapsed from his release (or the time elapsed from
sentencing, in case of a nonincarcerative sentence) in
determining what, if any, remaining registration time is
required.” Id. Consequently, “[i]n such cases, a jurisdiction
* * * does not have to require the sex offender to register on
the basis of the conviction, even if the criteria for retroactive
application of the SORNA standards * * * are otherwise
satisfied.” Id. at 38047.

     By narrowing the States’ requirements to register pre-Act
offenders, the Attorney General expressly acknowledged that
“specific provisions of the guidelines relating to ‘retroactivity’
incorporate some features that may limit their effect on sex
offenders with older convictions.” 73 Fed. Reg. at 38036. In
so doing, the Attorney General identified—that is, specified—
the potential implications of his decisions with respect to
retroactive coverage for pre-Act offenders. See 73 Fed. Reg.
at 38036; id. (noting that, to the extent jurisdictions choose to
incorporate the exceptions, “the effect of retroactive
application on sex offenders with pre-SORNA convictions may
be further reduced”). And doing so made sense. For a sex
offender only violates SORNA if he or she “knowingly” fails
to register within a designated jurisdiction. 18 U.S.C.
§ 2250(a); see 42 U.S.C. § 16913(a). For non-federal offenders
like Ross, SORNA tasks the States with identifying such sex
offenders, notifying them of their obligation to register, and
                                   9
obtaining written acknowledgment that such sex offenders
understand their obligations. 42 U.S.C. § 16917(a); 73 Fed.
Reg. at 38063–38064. Accordingly, if a jurisdiction is not
obliged to and chooses not to identify, notify, or register those
pre-Act offenders, any federal prosecution of such pre-Act
offenders would risk foundering upon the “knowing” element
of the offense, and perhaps also on SORNA’s affirmative
defense for offenders for whom registration was infeasible due
to circumstances beyond their control, 18 U.S.C. § 2250(c).
See also Kennedy v. Allera, 612 F.3d 261, 269 (4th Cir. 2010)
(“Indeed, the criminal provisions of SORNA also recognize
that a State can refuse registration inasmuch as they allow, as
an affirmative defense to a prosecution, the claim that
‘uncontrollable circumstances prevented the individual from
complying.’”) (citation omitted). 4

     The majority opinion highlights convictions for failing to
register prior to a jurisdiction’s implementation of SORNA in
which SORNA’s mens rea requirement nevertheless was met.
Op. 12. I do not disagree with the view that a sex offender’s
duty to register and a jurisdiction’s implementation of SORNA
are not always coextensive. But whether sex offenders
generally have a legal duty to register prior to SORNA’s
implementation in a particular jurisdiction is of little relevance
to the inquiry into whether the Attorney General, while making
explicit the general retroactive reach of SORNA to pre-Act
offenders in the Final Guidelines, also intended to specify
potential limitations on those retroactive consequences. The
Attorney General plainly stated that his Guidelines “may limit

4
 In this case, while the District of Columbia had not yet implemented
SORNA at the time of Ross’s arrest for failing to register, the District
had informed and obtained written acknowledgment that Ross
understood his registration requirements under D.C. law when Ross
was convicted of a sex offense in 1999. See United States v. Ross,
778 F. Supp. 2d 13, 15 (D.D.C. 2011).
                                10
their effect” on certain pre-Act offenders. 73 Fed. Reg. at
38036. I take the Attorney General to have meant what he said.
After all, as the majority opinion correctly notes, “the issue
here is what the Attorney General said he was doing[.]” Op.
14.

                                C

     In holding that no valid specification occurred, the
majority opinion relies on Prill v. NLRB, 755 F.2d 941 (D.C.
Cir. 1985), which held that an agency commits reversible error
when it deems mandated by law a decision over which it
actually has discretion, id. at 948. The majority opinion
reasons that the Attorney General mistakenly “disclaimed any
authority to decide for himself whether SORNA applied to pre-
enactment offenders.” Op. 9.

     But the Attorney General was certainly correct that
Congress itself had decided that SORNA should be
retroactively applicable to pre-enactment offenders to the
extent feasible. See Reynolds, 132 S. Ct. at 984. That is why
the Supreme Court in Reynolds backhanded the suggestion that
the Attorney General had the discretion to “refuse to apply the
new requirements to pre-Act offenders.” Id. The Supreme
Court, in fact, labeled an “unrealistic possibility,” id., the very
retroactivity judgment that the majority opinion faults the Final
Guidelines for not making.

     The Attorney General’s assignment instead was, in the
statute’s words, to “specify”—to state precisely or in detail—
when, how, and for whom such retroactivity could eventually
and practicably be accomplished across dozens of different
registration systems. Indeed, Congress’s selection of the verb
“specify”—rather than something more empowering like
“decide” or “determine”—underscores that the Attorney
General’s task was one of figuring out and then explaining how
                                  11
and when to make retroactivity work to the extent possible.
After all, to specify means simply to “tell or state precisely or
in detail.”       WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 2187 (2002). By its plain meaning, “specify”
does not charge the Attorney General with undertaking in the
first instance an overarching policy call about whether SORNA
should or should not apply to pre-Act offenders. 5

     The Attorney General plainly recognized his authority in
that specific respect. The “guidelines require the application
by a jurisdiction of SORNA’s requirements to sex offenders
convicted prior to the enactment of SORNA or its
implementation in the jurisdiction[.]” 73 Fed. Reg. at 38035
(emphasis added). That clear and explicit statement put pre-
SORNA offenders on plain notice of their retroactive duty to
register on pain of criminal penalty. See Reynolds, 132 S. Ct.
at 983. In addition, the Final Guidelines provide that SORNA
does not require States to register past offenders who had
already left the state registration system or those for whom
sufficient time had already been credited by the State. 73 Fed.
Reg. at 38036, 38047. Nothing in SORNA commanded those
precise exceptions; the Attorney General independently made
that judgment and laid it out in the Final Guidelines, and
acknowledged the practical effect doing so could have on the
pre-Act offenders themselves. Id. at 38036.

    On top of that, the Attorney General invited and then
specifically addressed public comments on retroactivity,

5
  See also THE NEW OXFORD AMERICAN DICTIONARY 1629 (2005)
(“specify” means to “identify clearly and definitely” and “state a fact
or requirement clearly and precisely”); CAMBRIDGE ENGLISH
DICTIONARY ONLINE (to “specify” is “to state or describe something
clearly and exactly”), http://dictionary.cambridge.org/us/dictionary
/english /specify (last accessed Feb. 15, 2017).
                              12
independently rejecting the argument that retroactive
application “adversely affect[s] sex offenders[.]” 73 Fed. Reg.
at 38035. The Attorney General explained his view that “the
effects of SORNA’s registration and notification requirements
on sex offenders are much the same regardless of whether their
sex offense convictions occurred before or after SORNA’s
enactment or its implementation in a particular jurisdiction[,]”
and that “the public safety concerns presented by sex offenders
are much the same, regardless of when they were convicted.”
Id. at 38035–38036.

     Further, after acknowledging the overarching “legislative
judgment” that the burdens of registration and notification
requirements “are justified by the resulting benefits in
promoting public safety[,]” the Attorney General added that “in
any event” his “objective [was] to ‘interpret and implement’
SORNA’s standards, see SORNA § 112(b), not to second-
guess the legislative policies they embody.” 73 Fed. Reg. at
38036. The Attorney General’s use of the phrase “in any
event” marries together his just-articulated independent
judgment about the public-safety need for retroactive operation
with Congress’s background retroactivity “policies.” Indeed,
the very next sentence explains how “specific provisions of the
guidelines”—not of SORNA—“may limit their effect on sex
offenders with older convictions.” Id. (emphasis added). The
Attorney General, in other words, went further than just
“hedg[ing]” his bets about SORNA’s statutory retroactivity, as
the majority acknowledges he did in the Interim Rule. Op. 4.
Building on that foundation, the Attorney General spelled out
his own independent judgment about how his announced
intentions regarding retroactive enforcement served the public
interest.

   Beyond that, it was eminently reasonable for the Attorney
General to take Congress’s retroactivity direction as his
                              13
guidepost, for “court and agency alike are bound to respect and
obey Congress’s intent.” Continental Air Lines, Inc. v.
Department of Transportation, 843 F.2d 1444, 1454 (D.C. Cir.
1988). That is, the Attorney General did not fail to
acknowledge and exercise his discretion with respect to
retroactivity. Rather, the Attorney General acknowledged and
exercised his cabined specification authority in a manner
informed by legislative intent, textual direction, and statutory
purpose.

     For those reasons, the more relevant case here, in my view,
is Chemical Waste Management, Inc., v. United States
Environmental Protection Agency, 869 F.2d 1526 (D.C. Cir.
1989). There, we upheld an agency’s rule that made retroactive
a provision of the Resource Recovery and Conservation Act of
1976, 42 U.S.C. § 6901 et seq. (1988), despite the fact that the
agency’s proposed rule “appeared to treat [retroactivity] as an
accomplished fact[,]” and “assume[d] rather than invite[d]
comments on this issue.” Chemical Waste Mgmt., 869 F.2d at
1535. We did so because the agency “received numerous
comments on this question[,]” “extensively discussed the
objections it had received, and * * * cogently explained its
reasons[.]” Id.

    So too here. Notwithstanding the Attorney General’s
understanding of Congress’s retroactivity command, he
“received numerous comments” on retroactivity, “discussed”
those comments, and “cogently explained” his reasons for
concluding that SORNA’s registration requirements should
apply to pre-Act offenders, as well as his reasons for narrowing
SORNA’s retroactive obligations in certain respects. See, e.g.,
73 Fed Reg. at 38035–38036.

                               D
                               14
     The difference in views between the majority opinion and
me on this thorny question is understandable. SORNA
retroactivity is a unique construct: Congress wrote the law in
plainly retroactive terms that (as the Supreme Court
acknowledged) the Attorney General could not realistically
alter. But then Congress also charged the Attorney General
with putting its purpose into practice—with figuring out how
retroactivity could work for which offenders and when across
myriad registration systems.

     While I thus understand the genesis of the majority’s
disposition, I cannot join it. I fear the majority opinion
overreads the Attorney General’s duty to “specify,” treating it
as a policy judgment of the type at issue in Prill, even though
the Supreme Court eschewed such an understanding of the
Attorney General’s role in Reynolds, 132 S. Ct. at 984. My
reading of SORNA, in light of Reynolds, is that specification is
instead an implementation task of providing pre-Act offenders
clear notice and discerning and explicitly articulating how,
when, and for whom retroactivity can feasibly be accomplished
across all of the participating systems, consistently with
Congress’s Spending Clause design.

    The consequences of the majority opinion’s disposition,
moreover, are potentially severe and far-reaching. If SORNA
and our precedent demand that the Attorney General must go
beyond the Final Guidelines and explicitly acknowledge and
exercise an independent power “to decide for himself whether
SORNA applie[s] to pre-enactment offenders[,]” Op. 9, then
SORNA may still not have any retroactive reach more than a
decade after its enactment and after repeated regulatory rounds.
That is because nothing in the later-issued 2010 regulations
(which also predated Reynolds) recognizes or purports to make
the substantive discretionary judgment the majority opinion
would require, at least not in a way that materially differs from
                              15
the Final Guidelines. See generally Applicability of the Sex
Offender Registration and Notification Act, 75 Fed. Reg.
81849-01 (Dec. 29, 2010) (codified at 28 C.F.R. pt. 72).

     To the contrary, as the majority opinion admits, the open
and announced position of the Attorney General and the United
States government was, until the Reynolds decision in 2012,
that SORNA was retroactive upon enactment. See Op. 9
(“Acting before the Reynolds decision, he took the view that
SORNA had applied to pre-SORNA offenders ever since its
enactment.”); Reynolds, 132 S. Ct. at 979 (noting that the
government’s view was that a sex offender who failed to
register before the Interim Rule was promulgated was in
violation of SORNA’s registration requirements).

     The Final Rule bears that view out. The Attorney General
was explicit that “federal registration obligations on sex
offenders have been in force since the enactment of SORNA.”
75 Fed. Reg. at 81850 (emphasis added). The Attorney
General then went out of his way to distance his Final Rule
from a court decision suggesting that SORNA required
independent regulatory action to operate retroactively,
emphasizing that “this publication does not reflect agreement
with the conclusion[] * * * that SORNA does not apply
retroactively of its own force.” Id. That sure sounds like “the
agency disavow[ed]” the very discretion that the majority
opinion says that it had to exercise. Op. 9.

    To be sure, as the majority opinion notes, the Attorney
General later said that “Congress at the very least placed it
within the Attorney General’s discretion to apply SORNA’s
requirements to sex offenders with pre-SORNA convictions if
he determines (as he has) that the public benefits of doing so
outweigh any adverse effects.” 75 Fed. Reg. at 81850.
                                16
     But if that parenthetical “as he has” is all the discretionary
reasoning that Prill requires, the government should win this
case. That is because the Attorney General undertook that
same independent weighing of the costs and benefits of
registration in the Final Guidelines, albeit without parentheses.
In responding to commenters in the Final Guidelines, the
Attorney General reasoned that “the effects of SORNA’s
registration and notification requirements on sex offenders are
much the same regardless of whether their sex offense
convictions occurred before or after SORNA’s enactment or its
implementation in a particular jurisdiction,” and “the public
safety concerns presented by sex offenders are much the same,
regardless of when they were convicted.” 73 Fed. Reg. at
38035–38036.

     The Attorney General’s “at the very least” likewise seems
far too agnostic and fleeting an aside to reflect any genuine
recognition of and exercise by the Attorney General of
discretion ala Prill. That is particularly true given the Attorney
General’s official statements bookending that language that
emphatically declared that SORNA took the retroactivity
decision out of his hands because it was fully retroactive of its
own force upon enactment. Indeed, the Attorney General
reiterated in the Final Rule, much as he did in the Final
Guidelines, that any discretion he had was hemmed in by
Congress’s “legislative judgment” that SORNA should apply
to all sex offenders. See 75 Fed. Reg. at 81852 (“Congress’s
enactment of SORNA reflects a general legislative judgment
that the public safety benefits of SORNA’s requirements
outweigh any adverse effects.”). Thus if the Final Rule
suffices, so should the Final Guidelines.

    In addition, the Attorney General’s announced position on
behalf of the United States in the Reynolds litigation was
explicit that retroactivity was not his call. See Brief for the
                                17
United States, Reynolds v. United States, 2011 WL 2533008,
at *13 (June 23, 2011) (“Petitioner’s duty to register as a sex
offender under SORNA arises directly from the statute itself.”);
id. (“Those [registration] requirements became effective on the
date of SORNA’s enactment.”); id. at *15 (“[P]etitioner’s
federal duty to register and update his registration * * * arises
from the statute itself[.]”); id. at *18 (“The federal directive to
those sex offenders went into effect on the date of SORNA’s
enactment[.]”). On top of that, the Attorney General told the
Supreme Court that all his Final Rule did was “confirm that
SORNA’s requirements mean what they say, i.e., they apply to
all sex offenders.” Id. at *31–*32.

     Given all that, it would be passing strange to say that the
Attorney General somehow consciously exercised his
discretion to make a policy judgment about SORNA’s
retroactive application vel non in the 2010 Final Rule. The
logical consequence of the majority opinion’s requirement that
the Attorney General must go beyond specifying how and
when retroactivity can come into effect, and must instead
decide for himself whether SORNA applied to pre-enactment
offenders at all, is that the Attorney General had to believe he
had some choice in that policy matter. And as the Attorney
General was not disabused of his belief that SORNA was
retroactive upon enactment until the Supreme Court told him
so in 2012, such recognition could not have occurred at the time
he promulgated the 2010 Final Rule.

     In any event, the at-least two year delay in retroactivity
that the majority opinion would impose by itself could call into
question hundreds of convictions. 6 And the majority opinion

6
  Between 2008 and 2010, nearly six hundred sex offenders were
convicted for failing to register under SORNA. See Sex Offender
Registration and Notification Act: Jurisdictions Face Challenges to
                                  18
inflicts that cost by, in my view, overreading the scope of the
Attorney General’s specification authority, and mistakenly
counting for naught the Attorney General’s (i) repeated and
explicit statements that SORNA applies to pre-Act offenders,
(ii) explanation of how retroactivity will work across the varied
registration systems, (iii) exercise of his statutory authority to
cabin States’ obligations to register pre-Act offenders in
specified circumstances, while noting its attendant impact on
pre-Act offenders, and (iv) articulation of his own reasons for
sharing Congress’s judgment as to the importance of such
retroactive coverage in 2008.         Those statements by the
Attorney General constitute “specify[ing]” in the plainest sense
of the term. Accordingly, I respectfully dissent.




Implementing the Act, and Stakeholders Report Positive and
Negative Effects, U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-13-
211, 54 (Feb. 7, 2013), http://www.gao.gov/assets/660/652032.pdf
(last accessed Feb. 15, 2017). Given the time it generally takes to
investigate, arrest, prosecute, incarcerate, and release a sex offender
and commence his registration obligation, it stands to reason that a
substantial number of those offenses predated SORNA’s enactment.
