United States v. Billy Reynolds
2013 U.S. App. LEXIS 5089
| 3rd Cir. | 2013Background
- Reynolds was convicted in Missouri in 2001 for sexually assaulting a seven-year-old, requiring sex-offender registration for six years.
- SORNA (2006) required new registration rules; the Attorney General issued an Interim Rule (Feb 28, 2007) making pre-SORNA offenders retroactive.
- The Interim Rule waived notice and comment under 5 U.S.C. § 553(b)(B) by claiming good cause and public-interest necessity.
- Reynolds challenged the rule on APA procedural grounds and nondelegation; the district court denied, and Reynolds pleaded guilty while preserving appeal.
- The Third Circuit initially upheld, then the Supreme Court reversed to permit merits review of the rule under APA, leading to remand for merits consideration.
- The panel now holds that the AG’s good-cause finding cannot withstand deferential review and the error is prejudicial; Reynolds’ conviction is vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for good cause under APA 553(b)(B) | Reynolds urged de novo review under 706(2)(D) | AG urged arbitrary-and-capricious review under 706(2)(A) | De novo, mixed, or arbitrary-and-capricious all possible; AG fails under any standard. |
| Sufficiency of good-cause justification for Interim Rule | Two reasons (uncertainty elimination and public safety) insufficient | Two reasons justify waiver due to urgency and safety risks | Interim Rule lacked sufficient good-cause justification. |
| Prejudice from APA procedural error in criminal case | Lack of notice-and-comment prejudices Reynolds; burden on government | Error harmless if not prejudicial | Government burden not met; prejudice established; Reynolds vacated. |
| Effect of remand on nondelegation and ultimate validity of rule | Constitutional challenges retain merit if rule invalid | Rule should stand if properly promulgated | Court did not decide nondelegation; focus remained on APA notice-and-comment defect. |
| Impact of post-promulgation commentary and record | Post-promulgation comments cannot cure complete failure | Post-comments may remediate defects | Complete failure to provide notice-and-comment cannot be cured by later comments; prejudice shown. |
Key Cases Cited
- Reynolds v. United States, 132 S. Ct. 975 (U.S. 2012) (Supreme Court holding on standing and APA/governmental design of retroactivity)
- Shenandoah v. United States, 595 F.3d 151 (3d Cir. 2010) (pre-SORNA interpretation; nondelegation/APA arguments litigated)
- Prometheus Radio Project v. F.C.C., 652 F.3d 431 (3d Cir. 2011) (harmless-error and procedural-public notice considerations in rulemaking)
- Hawaii Helicopter Operators Ass’n v. F.A.A., 51 F.3d 214 (9th Cir. 1995) (serious-harm justification for waiver requires specific facts)
- Jifry v. F.A.A., 370 F.3d 1174 (D.C. Cir. 2004) (serious-harm rationale requiring specificity in waivers)
- Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89 (D.C. Cir. 2002) (harmless-error analysis hinges on process and complete failure vs. technical)
- City of Waukesha v. EPA, 320 F.3d 228 (D.C. Cir. 2003) (distinguishes technical errors from complete failures in notice and comment)