[00:00:03] Speaker 00: Case number 11-315, United States of America versus Anthony T. Ross appellant. [00:00:09] Speaker 00: Ms. [00:00:09] Speaker 00: Wright for the appellant, Mr. Lenez for the appellee. [00:00:15] Speaker 03: Good morning, ladies and gentlemen. [00:00:16] Speaker 03: Lisa Wright, representing Mr. Anthony Ross. [00:00:18] Speaker 03: I'd like to reserve three minutes for rebuttal. [00:00:22] Speaker 03: Six years before Sorna's enactment, Mr. Ross was convicted of a misdemeanor sex offense and completed a four-month work release sentence. [00:00:31] Speaker 03: Subsequently, in Reynolds v. United States, the Supreme Court held that, quote, SORNA's registration requirements do not apply to pre-act offenders like Mr. Ross until the AG attorney general specifies that they do apply. [00:00:43] Speaker 03: Mr. Ross contends that his SORNA conviction for failure to register is invalid for two reasons. [00:00:50] Speaker 03: First, in leaving it to the prosecuting agency to decide whether SORNA would apply retroactively and thus whether pre-SORNA offenders [00:00:56] Speaker 03: could be sent to jail for failing to register. [00:00:59] Speaker 03: Congress unconstitutionally delegated its legislative authority to the executive branch in violation of separation of powers principles. [00:01:05] Speaker 03: And second, even if the delegation to the attorney general was constitutional, the attorney general failed to validly specify SORNA applied to people like Mr. Ross until 2011, which was after the conduct, or more accurately, this failure to act, that it was the basis for the crime in this case. [00:01:23] Speaker 03: First, as to the unconstitutional delegation of power, [00:01:27] Speaker 03: Strange as it sounds, Congress, in creating the federal crime that Mr. Ross was convicted of, simply failed to decide, or to give any guidance on how to decide, whether it applied to anyone on the day it was passed. [00:01:38] Speaker 03: It could have applied to no one, or it could have applied to a half a million people who had existing sex offenses. [00:01:45] Speaker 02: And Congress let the- And I take it it could apply not only sort of all the way along the spectrum between 500,000 and zero, [00:01:55] Speaker 02: Additionally, the degree of application to any particular set of persons was within the attorney general's remit. [00:02:06] Speaker 03: I think that's right. [00:02:07] Speaker 03: There's a vast delegation of power. [00:02:10] Speaker 03: And the government itself argued in Reynolds that Congress had not made such a vast delegation of its authority. [00:02:17] Speaker 03: But the Supreme Court ruled that it had acknowledged there was a constitutional question present that whether the delegation was constitutional [00:02:25] Speaker 03: Justices Scalia and Ginsburg expressed concern that such an extraordinary delegation was not constitutional and specifically said, it's not entirely clear to me, this is Justice Scalia writing, Justice Ginsburg joining, that Congress can constitutionally leave it to the Attorney General to decide [00:02:42] Speaker 03: with no statutory standard whatever governing his discretion, whether a criminal statute will or will not apply to certain individuals. [00:02:49] Speaker 03: That's a statement that there is in no intelligible principle stated if there is no statutory standard whatever governing his discretion. [00:02:57] Speaker 03: Although other circuits have all rejected the separation of powers challenge, many of those cases were decided before Reynolds and before the passage I just quoted was stated. [00:03:08] Speaker 03: Before Justice Scalia and Justice Ginsburg stated their belief that there was no statutory standard. [00:03:18] Speaker 03: The analysis set forth last year by Judge Gorsuch of the 10th Circuit establishes convincingly that SORNA delegation does indeed violate separation of powers. [00:03:27] Speaker 03: There's no intelligible principle or meaningful constraint. [00:03:30] Speaker 02: Well, the government's answer on intelligible principle is that the basic message of the statute is apply it up to the hilt. [00:03:40] Speaker 02: The sole purpose involved is a one-way purpose to make it more protective and more stringent. [00:03:50] Speaker 02: And so that is the standard. [00:03:53] Speaker 02: I take that you're saying that. [00:03:54] Speaker 03: Well, but as we were saying that if there is discretion between applying it to no one and applying it to half a million people and choosing and picking, [00:04:03] Speaker 03: I don't know that there is a guidance. [00:04:06] Speaker 03: There's a boundary that you can either, it's somewhere in that spectrum, but there is no guidance on how to exercise discretion within that boundary. [00:04:13] Speaker 03: As I quoted Justice Scalia, there's just no statutory standard whatsoever. [00:04:23] Speaker 03: It can't be very clear what the standard to discretion is when the Attorney General didn't recognize the delegation at all. [00:04:31] Speaker 03: I mean, to say he was given clear guidance when he didn't even realize he'd been delegated to, you know, is strange. [00:04:38] Speaker 03: So this is a truly unique situation. [00:04:40] Speaker 03: Congress created a federal crime where the executive both defines the reach and prosecutes those within the reach, and that's the sort of – creates the sort of threat to liberty that the separation of powers is designed to stop. [00:04:55] Speaker 05: I'm not sure what one does with this, where the delegation, as you said, the Attorney General didn't think he had any delegation at the time. [00:05:04] Speaker 05: Any of the interim rule, the guidelines, preliminary, final, and even the final, final rule, through none of those times did the AG yet realize that the AG had a delegated decision to make. [00:05:20] Speaker 05: So it's odd then to think that we would go back, and the AG just said, here's how I read the statute as not only having an intelligible principle, but as tying my hands on this decision. [00:05:33] Speaker 05: So the AG thought there was all kinds of direction here. [00:05:41] Speaker 05: What do we do? [00:05:41] Speaker 05: I've never seen an anti-delegation when the executive didn't think anything had been delegated and thought hands were completely tied. [00:05:51] Speaker 03: Well, I think probably the Attorney General couldn't believe that that delegation would be nai. [00:05:55] Speaker 05: Well, not just that. [00:05:56] Speaker 05: They saw in the statute where you said there's no intelligible principle, the AG here saw essentially handcuffs. [00:06:03] Speaker 03: Well, I think that the, obviously it went to the Supreme Court, there was a language that needed to be interpreted, and the Attorney General, I think, argued even in his brief in Reynolds that it made more sense, you know, really to interpret it the other way, and I think that's because it makes no sense to delegate this to the Attorney General. [00:06:21] Speaker 05: Right, but does it violate, how does, [00:06:24] Speaker 05: How does one find a violation of the anti-delegation doctrine when the executive didn't think they had any delegation and the executive, while you say there's no intelligible principle, the executive says, not only is there intelligent principles, but I am channeled into one decision by looking at the statute as a whole. [00:06:42] Speaker 03: Well, even if the Attorney General didn't realize that he was being delegated to, in the end, the law, as it was applied to Mr. Bross, was because of that delegation. [00:06:52] Speaker 03: I mean, it was because of the Attorney General's specification that he was held responsible, whether the Attorney General realized that or not. [00:07:01] Speaker 03: I guess that's the answer I would say to that. [00:07:07] Speaker 03: And so Congress's delegation to the Attorney General of the power to criminalize [00:07:10] Speaker 03: really not even Mr. Ross's actions, but his failure to act. [00:07:14] Speaker 05: Well, I think if Congress had said, we want the supply to everybody who meets the definition of sex offender, and so made that retroactive determination, but just said, which is another way of reading D is, but how this is gonna work implementation-wise is a mess, and it's gonna maybe change from state to state. [00:07:36] Speaker 05: You figure it out. [00:07:36] Speaker 05: Would there be any delegation problem there? [00:07:41] Speaker 03: I don't think so, because that would be the implementation and interpretation that the attorney general, you know, did a great job on in the smart guidelines, and he really figured out a good way to operate it, and that was all great, but the fundamental specification [00:07:56] Speaker 03: you know, was never part of it. [00:07:57] Speaker 05: But then everything that's in the guidelines, I mean, I'm not saying you need to sign on to all of it, but everything that's in those guidelines would at least be consistent with the anti-delegation principles. [00:08:09] Speaker 05: Those would all be the kinds of decisions the AG can make, because remember, the AG didn't specify there, the AG said Congress specified. [00:08:17] Speaker 05: So is there anything in the final guidelines, their content, that exceeds the boundaries of a constitutional delegation? [00:08:24] Speaker 05: other than the supposed specification, which we don't see in there. [00:08:32] Speaker 03: I don't think so, because that's all part of the background and general principles, and certain things must be noted, I believe the guidelines say, and that Congress has already done this. [00:08:42] Speaker 03: And then it goes into the substance of the guidelines, which interpret and implement. [00:08:46] Speaker 05: I'm just talking about how you're going to apply this. [00:08:48] Speaker 04: But, Ms. [00:08:48] Speaker 04: Mayer, why isn't it a specification in the SMART guidelines where the Attorney General said the applicability of the Sorenner requirements is not limited to sex offenders whose predicate sex offense convictions occur following a jurisdiction's implementation of a conforming registration program? [00:09:04] Speaker 04: In other words, [00:09:05] Speaker 04: it applies prior to a jurisdiction's implementation and presumably prior to the enactment as well. [00:09:15] Speaker 03: Well, the next sentence is really the qualifying sentence there. [00:09:18] Speaker 03: It explains that that's because, rather, SORNA's requirements took effect when SORNA was enacted on July 27, 2006, and they have applied since that time to all sex offenders. [00:09:27] Speaker 03: So unlike in the interim rule and unlike in the final rule where the Attorney General says very clearly, we think Congress did it, I think I did it in the interim rule, [00:09:36] Speaker 03: I'm doing it again and use the word specify, side of the 113D in both the interim rule and the final rule here. [00:09:43] Speaker 03: Does not do that, does not say I'm specifying. [00:09:45] Speaker 04: But that's a very formal argument. [00:09:46] Speaker 04: I mean, belt, suspenders, and another belt, you know, it almost becomes awkward for the Attorney General to say, I thought it was in the statute, it's in a rule, let me just tell you here, I still am adhered to that view. [00:10:01] Speaker 04: I mean, there's no question in any [00:10:04] Speaker 04: in the mind of any member of the public that this is intended to apply to pre-implementation. [00:10:13] Speaker 03: I don't think it's intended to make it retroactive, which is what's required. [00:10:17] Speaker 03: That it makes it retroactive. [00:10:19] Speaker 04: Do you think anyone reading this would think, oh, yes, and if the statute doesn't apply it by its own force, and if the interim guideline is not [00:10:29] Speaker 04: wasn't supported by good cause to bypass notice and comment, the Attorney General here might be changing his mind? [00:10:38] Speaker 03: Well, he does walk back between the proposed guideline and the final guidelines. [00:10:43] Speaker 03: He does change. [00:10:44] Speaker 03: The only thing that gets changed in the retroactivity section is that sort of critical passage that we're talking about, because in the proposed guideline, the Attorney General does cite, quote, or talk about his own interim rule and says, [00:10:58] Speaker 03: SORNA's requirements apply to all sex offenders, including those whose convictions predate. [00:11:03] Speaker 03: The Attorney General has so provided in 28 CFR Part 72 pursuant to the authority under SORNA [00:11:09] Speaker 03: 113D to specify the applicability of the requirements of SORNA. [00:11:13] Speaker 03: He says all that. [00:11:14] Speaker 03: That's what he says in the proposed guideline. [00:11:16] Speaker 03: But then when he gets to the final guideline, he walks back from that and says, oh, no, it's always applied. [00:11:21] Speaker 03: Those are actually two different dates. [00:11:23] Speaker 03: I mean, the proposed guideline, it's saying, I specified it. [00:11:27] Speaker 03: And it also cites the preamble to the interim rule, which does say that Congress made it that way all along. [00:11:33] Speaker 03: But it's interesting that in the final guideline, he just says he kind of takes [00:11:38] Speaker 03: steps back from responsibility and says, Congress did this. [00:11:41] Speaker 04: I don't know if that's stepping back or stepping forward. [00:11:43] Speaker 04: I mean, it's a little bit cleaner. [00:11:45] Speaker 04: It's saying, if there's any doubt, I'm not pointing only to the interim guidelines. [00:11:49] Speaker 04: I'm pointing all the way back to the statute. [00:11:51] Speaker 04: And that's my specification. [00:11:54] Speaker 03: Well, he doesn't realize he has a choice. [00:11:57] Speaker 03: So it's a flawed specification at best. [00:12:03] Speaker 05: What does specify mean? [00:12:05] Speaker 05: That's not our normal APA agency decision-making term. [00:12:10] Speaker 05: It's an odd term. [00:12:11] Speaker 03: I agree. [00:12:13] Speaker 03: I mean, I think it means, you know, make, declare. [00:12:18] Speaker 03: You know, dictionary says to make explicit. [00:12:20] Speaker 03: Yeah. [00:12:21] Speaker 03: And he does that in the interim rule. [00:12:22] Speaker 03: And as far as the awkwardness, I mean, the final rule. [00:12:25] Speaker 05: I guess what I'm trying to say is that specified just means make explicit. [00:12:30] Speaker 05: And it doesn't by itself include make a judgment. [00:12:34] Speaker 03: I think he has to make a choice, because that's what the Supreme Court says in Reynolds. [00:12:37] Speaker 05: That's what we're told in Reynolds. [00:12:38] Speaker 03: Yeah, if it weren't for Reynolds. [00:12:39] Speaker 03: But yes, in Reynolds, they're like, he has to decide and do it. [00:12:42] Speaker 03: He has to actually do it. [00:12:43] Speaker 03: And so that's what's missing in the Smart Guidelines. [00:12:47] Speaker 03: Whereas in the final rule, it may be awkward, but the attorney general does a very transparent thing. [00:12:55] Speaker 03: He says, this is what I thought, then I thought this, then I thought this, and now there's this, this is still all pre-Reynolds, but he goes ahead and does do the second pair of suspenders, and says that's what he's doing. [00:13:07] Speaker 03: And interestingly, in that final rule, doesn't adopt, he could easily have said, I did it in the smart guidelines. [00:13:15] Speaker 05: This is not an APA. [00:13:18] Speaker 05: And so what I'm trying to figure out is, for purposes of your client and others similarly positioned, does the statute, when it says specify, entitle them? [00:13:30] Speaker 05: Whatever is going on in the head of the AG, to anything more than notice, is it a required notification by the AG or is it from their perspective? [00:13:40] Speaker 05: What did the statute say they needed? [00:13:43] Speaker 05: They were entitled to it before the act would apply to them. [00:13:46] Speaker 05: Is it just this concept of notice? [00:13:48] Speaker 03: which they don't have to register. [00:13:50] Speaker 03: They just don't have to register. [00:13:52] Speaker 04: Well, they all have to register under pre-existing systems. [00:13:56] Speaker 03: Correct. [00:13:57] Speaker 03: Not under SORNA, but like, you know, your registration might have expired, for example. [00:14:02] Speaker 03: I think Mr. Ross's registration was within months of expiring when this offense was charged. [00:14:09] Speaker 03: So he would have been free of any registration duty at all. [00:14:13] Speaker 05: Well, unless the state imposed its own. [00:14:16] Speaker 03: But I mean, his state duty was only 10 years. [00:14:18] Speaker 05: No, but could a state then post-SORNA go, huh, Congress is right, good idea, we need to, our time limits were too short, we're going to change that? [00:14:31] Speaker 03: Yeah, I mean, I guess that could happen, but I mean, as far as what the effect of SORNA is on Mr. Ross and whether it's a notice question or not, no, I think it's much more fundamental than that. [00:14:42] Speaker 03: is he subject to its requirements, which is that he must go and do X, Y, and Z, and if he doesn't, he goes to jail. [00:14:48] Speaker 04: Ms. [00:14:48] Speaker 04: Wright, the Attorney General had the comments that were submitted following the interim regulation when the SMART guidelines were proposed and when they were adopted. [00:15:00] Speaker 04: Is there anything that was submitted in response to the interim rule that raised any substantive issues that were not addressed in the SMART guidelines? [00:15:12] Speaker 03: I have not, I've not read all the comments. [00:15:16] Speaker 03: I think from the attorney general you can, first of all, he says in the interim rule, essentially my hands are tied. [00:15:24] Speaker 03: So, I mean, it's our view that there was, that the people who commented were not the sophisticated stakeholders. [00:15:30] Speaker 03: They were the people. [00:15:30] Speaker 04: But that's not his fault. [00:15:31] Speaker 04: That's the action of the Supreme Court. [00:15:33] Speaker 04: I mean, so that seems like that goes to harmlessness. [00:15:38] Speaker 04: I guess it seems important to your claim that doesn't it turn on whether there was a kind of bait and switch in terms of when the specification was being made and that had it been clear in the smart guidelines that they were disposing of this question that your client and people similarly situated would have commented and perhaps influenced the final guidelines? [00:16:06] Speaker 03: I don't think that is necessarily required, and I think all the courts, almost all the courts that have looked at the harm questions, I guess the way I'm looking at it, have said that would eviscerate the rule and make it completely toothless. [00:16:19] Speaker 04: So your argument is just that there was not a specification period. [00:16:23] Speaker 03: Period. [00:16:24] Speaker 03: And that's my argument with the SMART guidelines, primarily, is, you know, if you just look at it, [00:16:32] Speaker 03: what he did and how he said it, it's pretty clear that he does not intend the Smart Guidelines to be a specification to be taking action. [00:16:40] Speaker 03: And it's only later in the final rule where he says, I think I maybe need to take action here. [00:16:45] Speaker 03: And he did that. [00:16:46] Speaker 03: And at that point, I think the problem is solved, but that was too late to catch Mr. Ross in the net, in this one in net. [00:17:00] Speaker 03: The court has no further questions. [00:17:03] Speaker 03: like to sort of save some time for rebuttal. [00:17:05] Speaker 05: Did you want, I mean, because you spent your time on delegation, did you want to talk about the final guidelines? [00:17:12] Speaker 05: I mean, some of that's been wrapped up a little bit, what we've talked about. [00:17:15] Speaker 05: Did you feel like you, just so we don't have, be raising something on rebuttal that they don't get a chance to answer to? [00:17:20] Speaker 03: Yeah, I mean, I sort of want to make clear that there's sort of two different arguments. [00:17:26] Speaker 03: My basic argument is that even if the delegation of the power was constitutional, because the AG didn't realize that he had the power, failed to validly exercise it. [00:17:33] Speaker 03: And there was really the two mistakes. [00:17:35] Speaker 03: One, he thought that there was no rule needed. [00:17:38] Speaker 03: So in issuing the interim rule, he failed to take the requirement seriously, didn't have good cause, and sort of asserted it without it. [00:17:48] Speaker 03: And then second, [00:17:50] Speaker 03: you know, failed to limit this error to a brief window like he could have. [00:17:54] Speaker 03: He could have issued the final rules at any time after he received those comments and waited. [00:17:59] Speaker 03: And that mistake was, I think, again, because he was wrongly confident of his good cause decision. [00:18:05] Speaker 03: So I think that there was, you know, he was close-minded and it was somewhat appropriate given his understanding of what was going on, but he was just wrong. [00:18:14] Speaker 03: And it's, you know, it's unfortunate for [00:18:17] Speaker 03: for what they were trying to accomplish, but they failed to accomplish it. [00:18:21] Speaker 03: The good cause, I think five circuits have agreed that there's no good cause. [00:18:25] Speaker 03: And when there's an utter failure like this to comply with a notice requirement, the court has to be certain, and there's certainly no certainty here as to what would have occurred if the attorney general had, for example, been made to realize that this really was his decision. [00:18:45] Speaker 03: You know, who knows what? [00:18:47] Speaker 03: I mean, we really don't know what that would have happened if he had understood that it was his decision, which he never did understand throughout any of this. [00:18:54] Speaker 03: And the good cause reasons that were given, I'd like to say also that it's sort of ironic that [00:19:03] Speaker 04: You said we don't know what would have happened if he understood this was his decision, don't we? [00:19:08] Speaker 04: I mean, I thought that wasn't really the government of your argument, because we do know what would have happened. [00:19:14] Speaker 04: He would have probably acted much quicker in our role and finalized it. [00:19:18] Speaker 03: Well, once you're locked in, I think you can't really look back and say exactly what would have happened, that you would have done the same thing if you hadn't [00:19:27] Speaker 03: already locked yourself in, you know, and been prosecuting people and putting people in jail and all these things, and now, four years later, come to a different outcome. [00:19:37] Speaker 03: But what I want to make about it, just the good cause, I've made all the arguments in the brief about why his reasons weren't good cause, but it's just sort of ironic that the government treated this like an emergency when, in fact, he didn't think it was necessary at all. [00:19:51] Speaker 04: That makes perfect sense. [00:19:52] Speaker 04: I mean, it undermines your position. [00:19:54] Speaker 04: You say we don't know what would have happened. [00:19:56] Speaker 04: I assume you're suggesting that he might have not [00:20:01] Speaker 04: fully exercise the specification power to the maximum applicability. [00:20:06] Speaker 04: But even under the position the government took in Reynolds, the government's position was that was precisely the power that the attorney general had to roll back to any degree he thought was significant the applicability to preact offenders. [00:20:23] Speaker 04: He knew he had that authority. [00:20:24] Speaker 04: He didn't exercise it. [00:20:25] Speaker 04: So isn't the converse of that that [00:20:28] Speaker 04: It's very clear, even on this sort of counterfactual record, that the Attorney General intended the fullest practicable applicability to pre-active offenders. [00:20:41] Speaker 03: I mean, he did make some substantive changes in response to comments about, like, the application to juveniles and going forward and some other things. [00:20:49] Speaker 03: I mean, he was open to realizing that it doesn't have to apply to every single person you could possibly apply to. [00:20:56] Speaker 03: I mean, Mr. Ross was a misdemeanor. [00:20:59] Speaker 03: You know, that would be a potential line that it might just be that the practical difficulties of doing this are so great and that it's just not worth it to impose this on the states. [00:21:07] Speaker 03: There's too much pushback. [00:21:08] Speaker 03: That's the sort of thing that happened with the juveniles. [00:21:11] Speaker 03: So I do think that there's possible, it's possible that with no proper notice and comment and really harmlessness [00:21:18] Speaker 03: is generally only relied on when the dispensing doesn't undermine the purpose of the procedure. [00:21:26] Speaker 03: And here the purpose of the procedure was undermined. [00:21:28] Speaker 03: The comments were not made and they weren't considered at the time the rule was issued. [00:21:35] Speaker 06: Thank you. [00:21:43] Speaker 01: Good morning and may it please the court, Dan Liners for the United States. [00:21:47] Speaker 01: As the court appears to have recognized, Appellant's view that the final SMART guidelines did not properly specify Sorna's retroactivity depends upon a highly formulaic view of what constitutes specification. [00:22:03] Speaker 05: There's no doubt that... Well, what does specify mean? [00:22:06] Speaker 05: What did it require of the AG? [00:22:08] Speaker 01: It required the Attorney General to say that Sorna applies retroactively. [00:22:13] Speaker 05: Just to make that announcement. [00:22:15] Speaker 05: Yes, Your Honor, which the Attorney General did in both the... Did it require the AG to make a judgment before making that announcement? [00:22:23] Speaker 01: Your Honor, even if... I don't believe it does, but even if it did, the Attorney General did explain his judgment. [00:22:31] Speaker 05: Doesn't Reynolds say that the AG has to make this judgment? [00:22:35] Speaker 01: And the Attorney General repeatedly made the judgment that... Where did the AG make the judgment? [00:22:40] Speaker 05: As I read the final guidelines, [00:22:42] Speaker 05: in the final rule. [00:22:44] Speaker 05: Final guidelines are explicit. [00:22:46] Speaker 05: Not my call. [00:22:47] Speaker 05: That's what the AG says. [00:22:48] Speaker 05: It's not my call. [00:22:51] Speaker 05: Can't couple with Congress. [00:22:52] Speaker 05: Not my call. [00:22:53] Speaker 05: This is retroactive. [00:22:54] Speaker 05: That's not making a judgment. [00:22:56] Speaker 01: Your Honor, no court of appeals to have addressed that argument has accepted that proposition. [00:23:01] Speaker 01: They have all found that the quality of comments the attorney general received and the attorney general's thoughtful response to those comments show that the attorney general [00:23:10] Speaker 05: The thoughtful response to the comment about whether this should be retroactive, not the details of implementation, but whether this should be retroactive, was not my call, not my decision to make. [00:23:21] Speaker 05: How can that possibly reflect him making an independent judgment as the Reynolds Supreme Court decision required? [00:23:30] Speaker 01: I disagree that that is either the tone or the effect of the Attorney General's response and the final smart guidelines. [00:23:38] Speaker 01: The Attorney General understood Congress to have made it retroactive, but in the initial rule explained that to exercise his judgment, he would likewise make it fully retroactive. [00:23:48] Speaker 05: No. [00:23:49] Speaker 05: I'm on the final guidelines here, 38036. [00:23:51] Speaker 05: Talking about comments received on retroactivity. [00:23:57] Speaker 05: do not establish that this legislative judgment is wrong, and in any event could not be accepted in formulation of guidelines, when all I'm supposed to do is interpret and implement, not to second guess the legislative policies they embody. [00:24:14] Speaker 05: I can't imagine that any clearer statement of, this is not my decision to make. [00:24:19] Speaker 05: You're asking me to second guess the legislative policies and decide that this legislative judgment is wrong. [00:24:28] Speaker 05: So what do I do with that language? [00:24:30] Speaker 01: That's talking about legislative judgment and legislative policies. [00:24:33] Speaker 01: It's not saying that Congress mandated that it apply retroactively. [00:24:37] Speaker 01: It's talking about the underlying policies and the Attorney General's agreement that those policies... What policies? [00:24:43] Speaker 01: Underlying policies. [00:24:44] Speaker 05: This is under the heading retroactivity. [00:24:47] Speaker 01: Yes, Your Honor, the policy embodied by SORNA to protect the public from sex offenders and to implement a nationwide registration scheme. [00:24:58] Speaker 01: And the Attorney General goes on later to discuss comments about its retroactive activity being unconstitutional or unfair, and it addressed [00:25:07] Speaker 01: both of those questions saying it would neither violate the Constitution and that fairness does not require that an offender be able to anticipate all future regulatory measures. [00:25:16] Speaker 04: But doesn't that really support Judge Millett's point in that if Congress has made the choice [00:25:24] Speaker 04: And there are objections. [00:25:26] Speaker 04: The attorney general is taking up the constitutional objection, because that actually could affect whether the executive with the take care duty should or shouldn't read it this way. [00:25:38] Speaker 04: But everything else is all premised. [00:25:40] Speaker 04: I mean, this retroactivity is really the two different rules here. [00:25:43] Speaker 04: We have the interim rule, and we have the smart guidelines. [00:25:46] Speaker 04: The interim rule seems to be speaking to the offender. [00:25:49] Speaker 04: The SMART guidelines are speaking to the jurisdictions. [00:25:52] Speaker 04: And there's a whole separate question about applicability to preact offenders, where it concerns the jurisdictions. [00:25:59] Speaker 04: And there's a lot of commentary that they say, how are we going to identify these people? [00:26:02] Speaker 04: This is a huge burden on us. [00:26:04] Speaker 04: How do we prioritize? [00:26:05] Speaker 04: What do we do? [00:26:06] Speaker 04: And the SMART guidelines speak to that. [00:26:09] Speaker 04: But I don't see the SMART guidelines also picking up the [00:26:13] Speaker 04: you know, even looking at it charitably, the project of the interim guideline and saying, and by the way, we're finalizing that too. [00:26:18] Speaker 04: It doesn't get finalized until much later. [00:26:22] Speaker 04: So if all the action in the SMART guidelines is about jurisdictional, jurisdictions compliance and the so-called retroactivity, the applicability to preact offenders that's addressed there, is how the jurisdictions [00:26:36] Speaker 04: work with that, I don't see a specification for that reason either. [00:26:41] Speaker 04: I mean, that's another reason why it's questionable whether there really was a specification in those guidelines. [00:26:45] Speaker 01: Well, the guidelines address issues beyond constitutionality. [00:26:49] Speaker 01: They address the fairness issue as well, which would go to the Attorney General's judgment about whether SORNA should apply retroactively to all offenders. [00:26:57] Speaker 01: As to your honor's second concern, there's no suggestion in the act that specification need to be aimed at a particular audience. [00:27:04] Speaker 01: And in fact, the jurisdiction's understanding their responsibilities for these pre-act offenders and who they needed to look for and how they needed to look for was based on who SORNA would apply to in the first instance and that the attorney general makes clear and the guidelines are built upon the proposition that SORNA applies to all pre-act offenders. [00:27:25] Speaker 01: And then the Attorney General tells the jurisdictions how to implement that broad requirement in a way that would satisfy the regulations. [00:27:33] Speaker 05: Is that just the whole concept of considering comments and making a decision? [00:27:40] Speaker 05: only works if you actually have the authority to make the decision. [00:27:44] Speaker 05: If one of your colleagues really wanted a pay raise and came to you and said, I'd like a pay raise, and you go, I think your work is great, but I don't have that authority. [00:27:54] Speaker 05: You've got to talk to Ms. [00:27:55] Speaker 05: X. The person said, no, no, no. [00:27:58] Speaker 05: Here's all my information. [00:27:59] Speaker 05: Here's all my paperwork. [00:28:00] Speaker 05: Here's all my arguments for why I should have a pay raise. [00:28:03] Speaker 05: How much are you going to focus on that? [00:28:06] Speaker 05: Look, I've got no quibble with you, but I'm not going to spend my time reading and studying this, because it's not my call. [00:28:13] Speaker 05: You've got to take it to the other person down the hall. [00:28:16] Speaker 05: And how do we know the AG would have given any open-minded consideration when the AG took comments about whether this should be retroactive or not? [00:28:27] Speaker 05: And to whom, when the AG said, [00:28:30] Speaker 05: Congress has already decided that. [00:28:33] Speaker 05: Who's going to spend time concentrating on that? [00:28:35] Speaker 01: We know that because that's what the Attorney General did in the final guidelines. [00:28:39] Speaker 01: We know that because other boards of appeals... What did he say? [00:28:42] Speaker 01: What was that? [00:28:44] Speaker 05: He considered and responded to comments and in the final rules... Where does he say that even if Congress hadn't made this call, I would make the same one? [00:28:53] Speaker 01: It's implicit in this discussion of fairness. [00:28:56] Speaker 01: He does not say Congress decided this matter full stop. [00:29:02] Speaker 01: Congress, he believed, had decided the matter, but he goes on to address these other circumstances. [00:29:07] Speaker 05: And in fact, in the final rule... I guess what I'm having trouble with is I think he says Congress made this call full stop in the quote I gave to you. [00:29:15] Speaker 05: And later in the rule, he keeps talking about the required retroactive application. [00:29:20] Speaker 01: The attorney general himself understood the final smart guidelines to have addressed the comments on retroactivity. [00:29:27] Speaker 01: In the final rule, the attorney general said the public comments on this interim rule were similar to comments received on the portions of the proposed SORNA guidelines [00:29:36] Speaker 01: addressing SORNA's application to sex offenders with convictions predating SORNA's enactment. [00:29:41] Speaker 01: Accordingly, as discussed below, the preamble to the final SORNA guidelines and various features of the guidelines themselves address the concerns raised by the comments on the interim rule. [00:29:50] Speaker 04: Where are you reading from? [00:29:51] Speaker 01: I'm reading from the final rule, Your Honor. [00:29:53] Speaker 01: This is 75 Fed Reg 81850, the first paragraph below. [00:30:00] Speaker 04: But that's the final rule after Mr. Ross's... [00:30:02] Speaker 01: Right, the attorney general in that paragraph is saying, the comments I received in response to the interim rule were similar to those I received about the SMART guidelines and the response I gave in the final SMART guidelines addresses those concerns. [00:30:19] Speaker 01: That's what the attorney general himself understood. [00:30:21] Speaker 05: So even by the time of the final, wasn't the final rule itself, Pree Reynolds? [00:30:26] Speaker 01: It was your honor, but the attorney general understood the final guidelines to have responded to comments about retroactivity. [00:30:35] Speaker 05: He made that response was I can't second guess the legislative policies. [00:30:40] Speaker 05: or determine that this legislative judgment is wrong. [00:30:44] Speaker 01: That's not how he explains it in the final work. [00:30:47] Speaker 01: He says the guide, the preamble and various features of the guidelines themselves address the concerns raised by the comments on the interim rule. [00:30:54] Speaker 05: Yeah, and the answer to those concerns is not my job. [00:30:57] Speaker 01: Your Honor, that's a good answer. [00:30:59] Speaker 05: It's an answer. [00:31:00] Speaker 05: It's a good answer. [00:31:00] Speaker 05: It doesn't mean that he ignored the comments. [00:31:02] Speaker 05: He gave them an answer. [00:31:04] Speaker 01: It's not an answer. [00:31:06] Speaker 01: It was not his answer, Your Honor. [00:31:07] Speaker 01: And as the Eighth Circuit found, that contention seriously underestimates the quantity of public comments concerning the application of SORNA's requirements. [00:31:16] Speaker 05: But again, those comments about the application were implementation. [00:31:20] Speaker 05: They were, how are we going to implement this? [00:31:22] Speaker 05: How is this going to work? [00:31:24] Speaker 05: What's the timing? [00:31:25] Speaker 05: How's this going to intersect with the state systems? [00:31:28] Speaker 05: I have no doubt that the AG thought he had discretion to deal with that, was explicit about that, talks about the authority to interpret and implement. [00:31:38] Speaker 05: So he acknowledges that authority. [00:31:40] Speaker 05: But I don't see how the AG addressing comments that address, all right, [00:31:47] Speaker 05: rubber meets the road, how is this going to work? [00:31:50] Speaker 05: Are any evidence that the AG thought he had independently made the fundamental decision about retroactivity or not? [00:32:00] Speaker 05: That's what I'm having trouble understanding. [00:32:01] Speaker 01: I understand what you're saying, Your Honor, but I disagree with that reading of the Attorney General's statements in the final guidelines about retroactivity. [00:32:12] Speaker 05: Which, could you show me the language in the final guideline, not the final rule, because that makes us worried, because that closed state of the conduct here. [00:32:19] Speaker 05: We're in the final guideline. [00:32:20] Speaker 05: What language? [00:32:21] Speaker 01: The same language, Your Honor quoted, that comments do not establish that the legislative judgment is wrong. [00:32:27] Speaker 02: Legislative judgment? [00:32:29] Speaker 02: So that doesn't... [00:32:31] Speaker 02: That's just going back to the proposition Congress decided. [00:32:34] Speaker 01: And not to second-guess the legislative policies they embody. [00:32:37] Speaker 01: It was looking at the legislative policies underlying the statute. [00:32:40] Speaker 04: Sorry to interrupt, but I think the burden is a little bit different. [00:32:43] Speaker 04: If the Attorney General is reading the statute to say Congress has made this determination, yes, I have the authority to roll it back. [00:32:52] Speaker 04: Because that's the position of the Justice Department and the Supreme Court in Reynolds. [00:32:57] Speaker 04: Yes, I have the authority to roll it back. [00:32:59] Speaker 04: But given my understanding that Congress made that judgment and my question is whether to trump that or push back on that, I'm deciding I'm not going to do that. [00:33:12] Speaker 04: Wouldn't it be a different question if the burden were, if the Attorney General understood the burden was on him in the first instance to decide whether and to what extent to apply the act to preact offenders? [00:33:25] Speaker 04: It seems like it's a very different question. [00:33:28] Speaker 01: The Attorney General may have approached [00:33:31] Speaker 01: the way he phrased the guidelines differently. [00:33:34] Speaker 01: But I don't think it's a different question for this court as to whether the attorney general used his judgment. [00:33:39] Speaker 02: And he said he wasn't going to second. [00:33:41] Speaker 02: There have been a lot of cases where Prill, I think, is the leading case. [00:33:46] Speaker 02: The agency thinks that it's bound by the statute. [00:33:50] Speaker 02: We said you were wrong on that. [00:33:52] Speaker 02: You actually have discretion here. [00:33:54] Speaker 02: Go out and exercise it. [00:33:55] Speaker 02: It seems to me this fits Prill very closely. [00:33:59] Speaker 01: But the attorney general made clear in the interim rule that even though he thought he was bound by the statute, he was going to make a judgment notwithstanding being bound, and that judgment was to apply it. [00:34:11] Speaker 01: Just a few months later, he promulgated the interim SMART guidelines, which reflected the same judgment. [00:34:17] Speaker 01: And then he finalized the SMART guidelines, which again reflected the same judgment that SORNA applied retroactively to all sex offenders. [00:34:25] Speaker 02: What's the best clause for your position here at this passage we're looking at? [00:34:32] Speaker 01: I think the best clause in that particular passage is not to second-guess the legislative policies they embody. [00:34:39] Speaker 01: The attorney general's looking to the policies underlying the law, not to the law requiring an outcome. [00:34:45] Speaker 04: I'm sorry, are you looking at the final Smart Guideline? [00:34:47] Speaker 04: Is that where you are now? [00:34:48] Speaker 05: Yes, I'm the... Is it the quote that I was doing? [00:34:50] Speaker 02: Yeah, top of page 10. [00:34:54] Speaker 02: That sounds like the statute, which embodies policies. [00:34:59] Speaker 02: I'm not going to second-guess them. [00:35:02] Speaker 02: That doesn't sound to me like someone who sees himself as exercising independent judgment. [00:35:07] Speaker 01: He's using his judgment not to second-guess the policies, Your Honor. [00:35:10] Speaker 01: And later on, the Attorney General goes on to discuss fairness. [00:35:13] Speaker 02: Why does he second-guess the policies to exercise his discretion to choose among the 500,000 possible people as to how far he will go in pushing retroactive application? [00:35:30] Speaker 05: It's not a second guess if you have the first guess. [00:35:37] Speaker 01: I would merely point, Your Honor, to the fact that no other court of appeals has accepted the court's proposition that five courts of appeals are unanimous, that these guidelines are properly specified in compliance with the APA's notice and comment requirements, and the Attorney General himself, as evidenced by the final rule, believed that these comments sufficiently addressed, sufficiently considered and addressed [00:36:04] Speaker 01: that the final Smart Guidelines sufficiently considered and addressed the comments received about Soreness retroactivity. [00:36:11] Speaker 05: And if... So just a little hard to reconcile with not just this, but we have the SG filing briefs in the Supreme Court in Reynolds stating the official position of the United States, and that was that as of the date of that brief, this is not the AG's call. [00:36:30] Speaker 05: This is not the AG's job. [00:36:32] Speaker 01: But it doesn't, even if the AG understood himself to be bound, it doesn't mean that he could not have at the same time. [00:36:39] Speaker 01: looked at the policy reasons for not applying SORNA retroactively and rejected those policy reasons as he made clear in the final. [00:36:47] Speaker 05: Is there any case where we've said, Judge Williams raised cases where the agency said, not my call, and we said, wrong, now go make the call. [00:36:58] Speaker 05: Is there one of those cases that you're aware of where the agency said, not my call, and we said, well, but you discussed some comments [00:37:06] Speaker 05: So even though you didn't think you could make the call, how you responded to comments is good enough. [00:37:14] Speaker 05: Do you have any case that fits that model? [00:37:18] Speaker 01: I don't, Your Honor. [00:37:20] Speaker 01: For that proposition, we relied on chemical waste management. [00:37:23] Speaker 05: The chemical waste agency knew it was its decision. [00:37:26] Speaker 05: It had made up its mind, but it knew it was its decision. [00:37:29] Speaker 01: Right, and that goes to whether they had fair notice and whether it was complying with the APA. [00:37:35] Speaker 01: And so here, for the same reasons that any defendant had fair notice that SORNA applied retroactively and would understand to submit comments to the interim... No, they might have had fair notice, but as Ms. [00:37:48] Speaker 05: Wright explained, there was actually a triggering judgment here with legal consequence. [00:37:53] Speaker 05: as to whether or not it was going to apply to his conduct. [00:37:57] Speaker 05: So it wasn't just notice, but then you actually had to have that triggering decision by the attorney general independently by the attorney general, which is what's missing. [00:38:07] Speaker 05: So I understand your notice point. [00:38:09] Speaker 01: I understand your point, Your Honor, and the Attorney General did not say, I am bound by this, full stop. [00:38:15] Speaker 01: He said, I believe Congress has decided it, and then explained why his judgment would be the same. [00:38:20] Speaker 01: And he understood himself to have made that judgment call, or at least made that explanation as to why the policy would remain the same in the final smart, in the final rule where he refers back to the final smart guidelines and say that the preamble. [00:38:34] Speaker 04: guidelines, Mr. Leonard, it's striking that they refer to pre-implementation offenders and don't explicitly refer to pre-act offenders. [00:38:45] Speaker 04: Is it possible that if there is a specification there that it's only with respect to pre-implementation offenders and not pre-act offenders? [00:38:55] Speaker 01: I'm sorry, what is Your Honor looking at? [00:38:57] Speaker 04: The SMART guideline, which only specifies with respect to pre-implementation [00:39:05] Speaker 04: offenders. [00:39:06] Speaker 05: Subsection D says AG makes a call on both retroactive offenders and non-retroactive offenders pre-implementation in the state. [00:39:18] Speaker 01: No, Your Honor. [00:39:19] Speaker 01: The Attorney General certainly understands that the final guidelines to make SORNA apply to all pre-act offenders, that the interim rule, or excuse me, the proposed guidelines made that clear. [00:39:31] Speaker 01: And in the final guidelines, [00:39:33] Speaker 01: The Attorney General said, for the reasons I've explained, on the same page we've been looking at, no changes have been made in the final guidelines relating to retroactivity based on the comments alleging an adverse effect on sex offenders. [00:39:45] Speaker 01: So the Attorney General understood that the language Your Honor is pointing at under Section C, retroactivity, to be making SORNA applicable to all pre-act offenders, and in fact the basis of the guidelines [00:39:58] Speaker 01: explains to jurisdictions how they're supposed to implement that rule for offenders whose convictions predate the Act, not simply offenders whose convictions predate the registration program, although those would be, the registration program offenders would be a larger group because it would be both offenders who predate the Act and those who fall in between when the Act was passed and when the conforming registration program was enacted. [00:40:28] Speaker 05: All right, thank you very much. [00:40:38] Speaker 03: Thank you. [00:40:38] Speaker 03: With all due respect to the five circuits, I think that it's pretty clear that they're wrong, because if you compare what the attorney general said in the final SMART guidelines with what he said in the final rule, it's just a very, very different approach. [00:40:54] Speaker 03: There's a large contrast between the two. [00:40:58] Speaker 05: That theory would then mean not just your client, but even the final rule that's out there now wouldn't have to, it still would not be triggered for anybody retroactively as of today because the final rule was pre-Reynolds as well as the final guidelines. [00:41:15] Speaker 05: Or do you agree the final rule was good enough? [00:41:19] Speaker 03: That's a big step. [00:41:19] Speaker 03: That's a hard question, but I think that [00:41:24] Speaker 03: Because the way he goes through it and says, this is another suspender, and in the final rule, he really says, I'm now treating this, I'm going to treat this as if I have the discretion. [00:41:34] Speaker 05: Where does he say that? [00:41:35] Speaker 05: Because he surely was telling Supreme Court he didn't have the discretion. [00:41:39] Speaker 03: No, he's sort of hypothetically, if I have the discretion. [00:41:42] Speaker 03: What line do you think? [00:41:43] Speaker 03: Well, does that count? [00:41:44] Speaker 03: Well, that's the question, but it's a lot better than what he said in the guidelines. [00:41:49] Speaker 05: But is it good enough? [00:41:51] Speaker 03: Well, you know, for Mr. Ross, that obviously does not affect him, but I think that might be a question another day. [00:42:00] Speaker 03: But he does say... No, I don't think it is. [00:42:02] Speaker 05: I think if we buy this rationale... [00:42:06] Speaker 05: that I don't know how we would distinguish. [00:42:07] Speaker 05: I'm not sure I can take a pass on that, even if you and your client can. [00:42:11] Speaker 03: I mean, I think that certainly the fact that he thinks he can't do it, that is the big problem. [00:42:16] Speaker 03: And that problem exists all through the whole thing. [00:42:18] Speaker 05: In what language and the final rule do you think is the magic language? [00:42:21] Speaker 03: I'll make sure this is a very fat document. [00:42:25] Speaker 03: He talks about many of the commenters assumed to turn general made a discretionary decision. [00:42:31] Speaker 05: I'm sorry, what page are you on? [00:42:33] Speaker 03: I think page two. [00:42:35] Speaker 03: The final part of the final rule in the last little section of the addendum. [00:42:46] Speaker 03: I interpret what he's saying in the final rule. [00:42:59] Speaker 03: I'm sorry, I'm trying to make sure I'm on the same page. [00:43:03] Speaker 03: of that last little section. [00:43:06] Speaker 03: And which heading are you under, summary of contents or misunderstanding? [00:43:09] Speaker 03: Well, above summary of contents, he kind of goes through the history and he says, [00:43:16] Speaker 03: He's saying, Congress did it. [00:43:18] Speaker 03: I believe I did it. [00:43:20] Speaker 03: And he says the smart guidelines state. [00:43:22] Speaker 03: He uses the word specify with respect to the interim rules. [00:43:26] Speaker 03: But when he talks about the guidelines, he says they, like the interim rules, state. [00:43:30] Speaker 03: This is the second paragraph. [00:43:32] Speaker 03: What does the paragraph begin with? [00:43:33] Speaker 03: Following the publication of the interim rule. [00:43:38] Speaker 03: um, towards the bottom there, he says the guidelines like the interim rules state, and that's a contrast from saying specify, um, and then he points out, I think in the next paragraph, that the Sixth Circuit [00:43:51] Speaker 05: Having said, that's just sort of fussing about the interim rule there, right? [00:43:55] Speaker 05: That's just a fight over the interim rule. [00:43:58] Speaker 03: When he talks about UTESH in the next paragraph in the United States of UTESH, he's talking about whether the guidelines independently are a valid final rule. [00:44:06] Speaker 03: And he says, you know, [00:44:09] Speaker 03: unlike where he said Congress did it and I did it in the inner rule, when it comes to the Smart Guidelines, he doesn't say I did it. [00:44:14] Speaker 03: He says they stated, and then he says that the Sixth Circuit thinks that that was a valid final rule, and this rulemaking reflects no disagreement with that conclusion. [00:44:23] Speaker 05: Or that no disagreement with that court's conclusion, that's when it does not apply retroactively of its own force? [00:44:30] Speaker 03: Is that what you mean? [00:44:31] Speaker 03: reflection of this agreement with the conclusion, but rather aims to eliminate any possible uncertainty or dispute by finalizing the interim rule. [00:44:39] Speaker 03: Now, if he, you know, obviously the final rule's already been, it's been finalized. [00:44:42] Speaker 05: But this publication does not reflect agreement with the conclusions of an earlier decision of the Sixth Circuit that the interim rule was invalid and that SORNA does not apply retroactively of its own force. [00:44:51] Speaker 05: Right. [00:44:52] Speaker 05: So, disagreeing that it's not retroactive of its own force. [00:44:55] Speaker 05: That's hard to think that that's evidence of a decision that he was making independently. [00:45:00] Speaker 04: Wouldn't your best citation be further up in the paragraph following the supplementary information paragraph, the one that begins, the preamble to the interim rule took the position that SORNA applies of its own force, and then for the end of that paragraph, in light of these considerations, the Attorney General exercised his rule-making authority [00:45:23] Speaker 04: under SORNA to specify that the requirements, that quote, the requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for which the registration is required prior to the enactment of that act. [00:45:37] Speaker 04: So here it's saying he's specified, he understands this background, he's still specified. [00:45:44] Speaker 04: He determined there was good cause for receiving public comment after, [00:45:52] Speaker 04: I mean, isn't that the statement of having exercise of judgment? [00:45:56] Speaker 03: Right, he believes, wrongly, that he had the cause. [00:45:59] Speaker 03: I mean, yes, the interim rule did specify, but it did so in violation of the APA. [00:46:05] Speaker 04: Right, that's a separate question, but we were just talking about whether one could, if one were to agree with you, nonetheless find that the interim rule, once finalized, was a valid specification under the statute. [00:46:19] Speaker 04: That was the question that Douglas was asking, and I think you were looking for something in the final rule that might [00:46:25] Speaker 04: Yes, he does support that distinction. [00:46:27] Speaker 04: He does say that. [00:46:29] Speaker 05: And then we have to throw out the window this whole argument that before it's a valid specification, the AG has to think the AG has a decision to make. [00:46:37] Speaker 05: And if we're throwing that out the window, then we might as well be back in final guidelines. [00:46:39] Speaker 03: I don't throw that out the window. [00:46:40] Speaker 05: I don't throw that out the window. [00:46:41] Speaker 05: OK, then if you don't throw that window, if you think the AG has to not just use the magic word specify, but actually has to make an independent [00:46:50] Speaker 05: As of the time of that final rule, the AG's position there, does it agree with that six-digit decision? [00:46:56] Speaker 05: And the US Supreme Court was, this is not my call. [00:47:00] Speaker 05: So it still hasn't been made. [00:47:03] Speaker 03: Right. [00:47:03] Speaker 03: And that's, you know, Mr. Ross cannot, you know, his conviction is... I'm asking the wrong person, right? [00:47:12] Speaker 03: I think there are no further questions. [00:47:16] Speaker 03: Thank you very much. [00:47:17] Speaker 03: Thank you. [00:47:18] Speaker 03: The case is submitted.