Lead Opinion
OPINION
This case returns to us after the Supreme Court’s review in Reynolds v. United States, — U.S.-,
The courts of appeals are divided on each of these questions. On the first question, the Fifth and Eleventh Circuits have determined that the arbitrary and capricious standard is the appropriate standard for reviewing the Attorney General’s actions, the Fourth and Sixth Circuits have not stated a standard but appear to use de novo review, and the Ninth Circuit has explicitly avoided the question.
We conclude that we need not decide the appropriate standard of review today be
I
In 2001, Reynolds was convicted of sexually assaulting a seven-year-old girl in Missouri. This conviction required him to register as a sex offender, which he did for the next six years. Meanwhile, Congress passed SORNA in 2006, which required individuals convicted of sex offenses after its enactment to comply with certain registration requirements. Through the promulgation of an administrative rule on February 28, 2007, the Attorney General made SORNA’s registration requirements retroactive to those convicted of sex offenses before its enactment — i.e., sexual offenders such as Reynolds.
On September 16, 2007, Reynolds moved to Washington, Pennsylvania. He failed both to update his place of residence and employment information in Missouri and to register as a sex offender in Pennsylvania. Police discovered these registration violations on October 16, 2007, when Reynolds was arrested for violating parole. He was subsequently indicted for violating SORNA’s registration requirements because of his failure to register between September 16, 2007 and October 16, 2007. He pleaded guilty, reserving his right to appeal. He was sentenced to eighteen months of imprisonment to be followed by three years of supervised release.
A. Procedural History
Reynolds’s primary challenge to his conviction has been to its legal basis. In the District Court, he moved to dismiss the indictment, arguing that SORNA violated the nondelegation doctrine, the Commerce Clause, the Ex Post Facto Clause, the Tenth Amendment, and his Fifth Amendment substantive and procedural due process rights. Finally, he argued that even if SORNA did not violate the Constitution, his indictment should be dismissed because it was based on an administrative rule promulgated by the Attorney General that did not comply with the requirements of the APA. The District Court rejected each of these arguments and denied his motion to dismiss the indictment. Reynolds subsequently entered into a plea agreement that specifically reserved his right to appeal those issues argued in his motion to dismiss the indictment.
In his first appeal to this Court following his guilty plea, Reynolds presented these same arguments. Bound by United States v. Shenandoah,
In reversing, the Supreme Court rejected this Court’s interpretation in Shenandoah of the power delegated to the Attorney General by SORNA’s registration requirement. 42 U.S.C. § 16913(d) (“The Attorney General shall have the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter ..., and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).”); 42 U.S.C. § 16913(b) (providing when sex offenders other than those who had already completed their sentences should initially register).
The Supreme Court interpreted § 16913 otherwise. The Court held that the registration requirement did not automatically apply retroactively to sex offenders who committed their offense before SORNA was enacted. Instead, the Court explained
B. Administrative History
At issue here is the Attorney General’s February 28, 2007 Interim Rule that made SORNA’s registration requirements retroactive for all pre-SORNA offenders. Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894-01, 8897 (Feb. 28, 2007) [hereinafter “Interim Rule”]. The Attorney General issued this Interim Rule seven months aftеr SORNA delegated authority to him to make SOR-NA retroactive. The Attorney General did not provide the period for notice and comment required under 5 U.S.C. § 553(b), nor did he provide the minimum thirty-day delay before the rule became effective under 5 U.S.C. § 553(d)(3). Instead, he concluded that notice and comment were not required because “good cause” existed pursuant to 5 U.S.C. § 553(b)(B) and that requiring those procedures would be “contrary to the public interest.” Interim Rule, 72 Fed.Reg. at 8896-97 (citing 5 U.S.C. § 553(b)(B)). He provided the following reasons to support his finding of good cause:
The immediate effectiveness of this rule is necessary to eliminate any possible uncertainty about the applicability of the Act’s requirements — and related means of enforcement, including criminal liability under 18 U.S.C. 2250 for sex offenders who knowingly fail to register as required — to sex offenders whose predicate convictions predate the enactment of SORNA. Delay in the implementation of this rule would impede the effective registration of such sex offenders and would impair immediate efforts to protect the public from sex offenders who fail to register through prosecution and the imposition of criminal sanctions. The resulting practical dangers include the commission of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders that could have been prevented had local authorities and the community been aware of their presence, in addition to greater difficulty in apprehending perpetrators who have not been registered and tracked as provided by SORNA. This would thwart the legislative objective of “protecting] the public frоm sex offenders and offenders against children” by establishing “a comprehensive national system for the registration of those offenders,” SORNA § 102, because a substantial class of sex offenders could evade the Act’s registration requirements and enforcement mechanisms during the pendency of a proposed rule and delay in the effectiveness of a final rule.
Id. Finally, the Interim Rule allowed comments to be submitted for two months after promulgation. Id. at 8894.
II
Reynolds’s conviction is based on the Interim Rule because the conduct alleged in the indictment occurred from September 16, 2007 to October 16, 2007, approximately ten months before the Final Rule went into effect. Reynolds challenges the validity of the Interim Rule on two grounds. First, he argues that the Attorney General did not have “good cause” under the APA to waive its procedural requirements. Second, he argues that Congress’ delegation to the Attorney General of the authority to make SORNA retroactive is an unconstitutional delegation. Because we conclude that the Attorney General did not provide sufficient justification for his finding of good cause and that this error prejudiced Reynolds, we do not reach Reynolds’s nondelegation argument.
Our jurisdiction to hear this case is provided by 28 U.S.C. § 1291, while the District Court’s jurisdiction was provided by 18 U.S.C. § 3231. Our standard of review for a district court’s denial of a motion to dismiss an indictment is mixed. We review de novo a district court’s legal conclusions and a district court’s factual determinations for clear error. United States v. Nolan-Cooper,
A. Standard of Review
We must consider the parties’ dispute over our standard of review for an administrative agency’s assertion of good cause under § 553(b)(B) of the APA before deciding if good cause existed. The parties and our prior decisions provide three possible standards: de novo, mixed, and arbitrary and capricious. Reynolds argues that the appropriate standard is de novo under 5 U.S.C. § 706(2)(D), while the Attorney General argues for arbitrary and capricious review under 5 U.S.C. § 706(2)(A).
Supporting Reynolds’s position are the Fourth and Sixth Circuits’ application of de novo review, although these courts do not specifically state the standard they applied. United States v. Gould,
Notably, none of these decisions has extensively analyzed the standard of review question and only the Fifth and Ninth Circuits have directly linked their discussion of the standard to § 706. Johnson,
The ambiguity created by the foregoing disagreement is heightened by the absence of an expressed standard in many non-SORNA good cause decisions by courts of appeals. Instead, courts have resolved these cases by interpreting § 553’s good cause provision with a limiting principle. This principle is most commonly formulated as a direction that “good cause” should be “narrowly construed.” Cain,
Our application of this interpretive principle generally suggests that de novo review is the correct standard for examining claims of good cause under the APA. But the close examination required by de novo review, Natural Res. Def. Council,
One of our decisions, however, is more ambivalent about whether narrow construction of good cause mandates de novo review exclusively. Philadelphia Citizens in Action v. Schweiker,
Schweiker’s bifurcated analysis shows that the narrow-construction limiting-principle supports the third standard available — a mixed standard — consistent with both de novo and arbitrary and capricious review. This mixed standard requires that we review de novo whether the agency’s asserted reason for waiver of notice and comment constitutes good cause, as well as whether the established facts reveal justifiable reliance on the reason. But any factual determinations made by the agency to support its proffered reason are subject to arbitrary and capricious review.
So while some of our good cause decisions — such as Natural Resources Defense Council and Mobay — suggest that de novo review is the appropriate standard in light of the narrow-construction limiting-principle, Schweiker suggests that this principle could also support mixed review. Clearly, our decisions are in tension with one another because similar procedural determinations afforded deference in Schweiker are afforded little or no deference in Natural Resources Defense Council and Mobay. Fortunately, we need not abate that tension here because we conclude that the Attorney General’s good cause determination will not pass muster under any of the available standards.
In summary, § 706 and our prior decisions provide us with three possible standards: de novo, mixed, and arbitrary and capricious. Selecting the appropriate standard gives rise to several difficult questions. The first is how to resolve the tension between Schweiker and our other good cause decisions. There is reason to doubt Schweiker’s use of mixed review because the decision appears to be an outlier from the body of good-cause case-law from this Court, as well as other courts of
We decline, for now, to resolve these questions. We conclude that the Attorney General’s assertion of good cause fails even the most deferential standard of arbitrary and capricious. Accord Valverde,
B. Good Cause
As with the standard of review, appellate courts are divided over whether the Attorney General’s justifications are sufficient to support a good cause determination. The Fourth and Eleventh Circuits have concluded they are sufficient. Gould,
Under the arbitrary and capricious standard, a court’s scope of review is “narrow, and a court is not to substitute its judgment for that of the agency.” Gardner,
Notice and comment may be waived “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B). The Attorney General concluded that good cause existed because undergoing notice and comment for the Interim Rule would be “contrary to the public interest,” offering two reasons. Interim Rule, 72 Fed.Reg. at 8896-97. First, he asserted that there was a need to immediately “eliminate any possible uncertainty” whether SORNA applied retroactively. Id. Second, he сontended that waiver was necessary in order to “protect the public from sex offenders who fail to register” and thereby create “practical dangers,” including “the commission of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders.” Id. We discuss each reason in turn.
The desire to eliminate uncertainty, by itself, cannot constitute good cause. To hold otherwise would have the effect of writing the notice and comment requirements out of the statute. The Attorney General states in the Interim Rule that waiver is needed in order to eliminate “any possible uncertainty” in regard to the retroactive application of SORNA’s registration requirements. Interim Rule, 72 Fed.Reg. at 8896 (emphasis added); see also Dean,
Further undermining the uncertainty rationale is that the elimination of notice and сomment, with the simultaneous request for postpromulgation comments, does not achieve the stated goal of eliminating “any” uncertainty. Requesting comments on the Interim Rule implicitly suggests that the rule will be reconsidered and possibly changed in light of these comments. But that means the level of uncertainty is, at best, unchanged, and possibly enhanced because parties do not view the Interim Rule as the final version. Johnson,
The Government argues that the limiting principle to its uncertainty justification is the unique necessity of the Interim Rule. Urgent action was required, according to the Attorney General, to ensure that “SORNA would be enforceable at all as to sex offenders convicted before July 27, 2006 [the Act’s effective date].” Gov’t Suppl. Br. at 19 (emphasis in original). This reasoning is unpersuasive for several reasons. First, this argument assumes that retroactivity was the necessary conclusion of the Attorney General’s rulemak-ing — an assumption that is contrary to the very purpose of notice and comment for agencies to “maintain[ ] a flexible and open-minded attitude towards its own rules.” Prometheus Radio Project v. F.C.C.,
Because no externally-imposed deadline created urgency, the Government’s urgency argument must rest on the notion that the nature of sex offenses warrants good cause. This may be, to some, an appealing intuition but it lacks a basis in law. Indeed, if there is any presumption when it comes to questions of good cause in criminal cases, we agree with the D.C. Circuit that “a criminal prosecution founded on an agency rule should be held to the strict letter of the APA.” United States v. Picciotto,
The Government posits that rejecting its uncertainty argument “would mean that an agency’s perception of urgency never could satisfy 5 U.S.C. § 553(b)(B) because every delegation entails some delay.” Gov’t Suppl. Br. at 21 (emphasis in original). The only rule we establish today is that “an agency’s perception of urgency” alone is not sufficient to satisfy § 553(b)(B)’s good cause exception. Section 553(b)(B) allows waiver only if notice and comment are “impracticable, unnecessary, or contrary to public interest.” 5 U.S.C. § 553(b)(B). Urgency for urgency’s sake, or “an agency’s perception of urgency,” without any supporting evidence, is not among those situations identified by the statute. As with any other administrative agency conclusion, we require some statement of facts or circumstances that justifies the existence of good cause (e.g. an imminent, externally imposed deadline or the existence of an emergency). See, e.g., Schweiker,
The Attorney General’s second rationale, which the Eleventh and Fourth Circuits relied on most heavily, is that waiver of the notice and comment requirements were necessary in order to “protect the public from sex offenders who fail to register” thus creating “practical dangers,” including “the commission of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders.” Interim Rule, 72 Fed.Reg. at 8896-97; Dean,
Mere restatement of the public safety rationale offered in the statute cannot constitute good cause because it would allow agencies to circumvent the notice and comment requirements. The statutory purpose of SORNA is “to protect the public from sex offenders and offenders against children.” 42 U.S.C. § 16901. The Interim Rule’s public safety rationale for good cause, in turn, is to reduce “practical dangers” to the public that “include the commission of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders.” 72 Fed.Reg. at 8897-98. Yet this rationale does no more than iterate the harm that “sex offenders and offenders against children” represent. Valverde,
In reaching the opposite conclusion, the Eleventh Circuit relied heavily on the D.C. Circuit’s formulation that good cause may exist when notice and comment would result in “serious harm.” Dean,
The D.C. Circuit’s own application of its serious harm rationale confirms this specificity requirement. For example, in Jifry v. F.A.A.,
This specificity requirement is little more than a demand that an agency comply with § 553(b)(B)’s language which requires within the rule “a brief statement of reasons” supporting why an agency wishes to waive notice and comment. 5 U.S.C. § 553(b)(B). The degree of specificity required is not great, as the FAA’s reliance on September 11 in Jifry illustrates, but the reasons provided must demonstrate the need for a new regulation in a shorter-than-usual time span.
Here, the Interim Rule’s mere restatement of the statute’s public safety goal is
The Eleventh Circuit’s formulation of the “serious harm” rationale in Dean to permit waiver for good cause whenever “delay would do real harm” only reinforces the need for a specificity requirement. Dean,
Accordingly, the Eleventh Circuit’s distinguishing of the Sixth and Ninth Circuits’ reasoning on the basis that those cases limited good cause to emergency situations without recognizing the serious harm or real harm rationale does not convince us that the Interim Rule adequately set out good cause. Dean,
We therefore hold that the Interim Rule did not provide sufficient justification to constitute good cause for the waiver of notice and comment.
C. Prejudice
Our conclusion that the Attorney Generаl lacked good cause to waive notice and comment does not end our analysis. The APA requires that “due account shall be taken of the rule of prejudicial error” when courts review agency actions. 5 U.S.C. § 706(F). This means that we must determine whether the agency’s error is harmless. Shinseki v. Sanders,
The Government bears the burden of showing that the failure to provide notice and comment was harmless because of the liberty interest at stake in a criminal proceeding. In Sanders, the Supreme Court interpreted a similar prejudice provision, 38 U.S.C. § 7261(b)(2), which provides that the Veterans Court must “take due account of the rule of prejudicial error.” Sanders,
This incorporation is notable here because harmless error doctrine distinguishes between civil and criminal matters in allocating the burden of proof. In civil matters, the “party seeking reversal normally must explain why the erroneous ruling caused harm.” Sanders,
The Government argues that this conclusion is erroneous because sex-offender registration-regimes like SORNA impose only civil penalties. Smith v. Doe,
The Government’s task in carrying this burden is difficult here. The Attorney General chosе to completely fore-go notice and comment; he did not merely commit some technical error in providing a notice and comment period. In the ordinary civil case, prejudice from the failure to comply with the notice and comment regime falls into two general categories. In the first category, the agency has provided some notification and method for commenting but some technical failure in that process violates statutory requirements. City of Waukesha v. EPA,
This distinction between technical errors and complete procedural failures is a sensible one: it is driven by a concern that harmless error analysis could be used to eliminate the notice and comment requirements together with a recognition that the underlying purposes of § 553’s requirements are often satisfied when the errors made are mere technical ones. As the D.C. and Ninth Circuits have explained, “if the government could skip [§ 553] procedures, engage in informal consultation, and then be protected from judicial review unless a petitioner could show a new argument' — -not presented informally — section 553 obviously would be eviscerated.” Sugar Cane Growers,
Focusing on the process has allowed courts to make a meaningful distinction between technical errors and complete failures of notice and comment. Technical errors are often harmless absent a demonstration that the challenger would have made a comment to the rule not considered by the agency because these errors often do not prevent the purposes of notice and comment from being satisfied. Id. We have previously explained that “[a]mong the purposes of the APA’s notice and comment requirements are ‘(1) to ensure that agency regulations are tested via exposure to diverse public comment, (2) to ensure fairness to .affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.’ ” Prometheus Radio Project,
These purposes are often fulfilled despite the presence of technical errors. In Riverbend Farms, for example, the Secretary of Agriculture’s weekly final rules that set quantity limitations on navel orange production were challenged on procedural grounds.
These harmless technical errors stand in contrast to an agency’s complete failure to comply with § 553’s requirements. In those situations, the purposes of notice and comment often cannot be fulfilled because there has been no effort to have the kind of exchange of views and information the requirements are intended to generate. Without notice and comment, the regulations are not tested by public input nor do and interested parties have an opportunity to develop a record for judicial review. The lack of a record makes it very difficult for a reviewing court to “say with certainty whether petitioner’s comments would have had some effect if they had been considered when the issue was open,” even if we are not sure what those comments would have been. McLouth Steel Prods.,
This is not to say that there is a presumption of harm when an agency does not provide notice and comment — only that the nature of complete failure often results in courts’ finding prejudice. Courts do find that the complete failure to provide for notice and comment is harmless, for instance, when an agency’s substantive rule is “the only reasonable one” that the court “would reverse ... if [the agency] came out the other way.” Sheppard v. Sullivan,
In the cases discussed above, courts have discussed possible prejudice in the civil context. Here, we must determine how shifting the burden from the complaining party to the Government affects the analysis. In civil cases, the burden on a party challenging a rule is more difficult to satisfy when the errors are technical than when an agency has failed completely
Here, the Government’s burden is heavy because the Attorney General completely failed to provide notice and comment. We conclude that the Government cannot carry that burden. First, as with most “complete failure” situations, the Government has not shown that the purposes of notice and comment have been satisfied. The Interim Rule was never “tested via exposure to diverse public comment,” Prometheus Radio Project,
The Government also has not shown that the Attorney General “maintain[ed] a flexible and open-minded attitude towards” the Interim Rule. Prometheus Radio Project,
The failure to satisfy these purposes is especially troubling because the Attorney General’s decision to issue the Interim Rule undermines the very essence of why notice and comment is required. “[T]he essential purpose of according § 553 notice and comment opportunities is to reintroduce public participation and fairness to affected parties after governmental authority has been
Even the timing of the Interim Rule undermines the reliability of the agency’s justification. The rule was promulgated only after the Attorney General realized that his interpretation that SORNA’s registration requirements were automatically retroactive was incorrect. Reynolds’s conviction thus appears to rest not on carefully considered fаcts and reason but on a hasty reaction from an Attorney General caught by surprise when courts, including the Supreme Court, disagreed with his interpretation of SORNA. More troubling is that this hasty reaction resulted in an interim rule that reiterated the substantive, unpublished judgment expressed in litigation (that SORNA was retroactive for all pre-SORNA offenders) before the Interim Rule was issued — exactly the type of “unpublished ad hoc determination! ]” that is “inherently arbitrary [in] nature” and that notice and comment are intended to avoid, Morton,
The Government cannot show therefore that the promulgation of the Interim Rule has satisfied the purposes of notice and comment. Like other “complete failure” situations, the process used to promulgate the* rule was completely devoid of the “exchange of views, information, and criticism between interested persons and the agency” that ensures well-reasoned and fair rules. Prometheus Radio Project,
Furthermore, the Government cannot show that the Attorney General’s conclusion was inescapably correct. The strongest argument the Government can muster that full retroactivity was the only possible conclusion is the Fifth Circuit’s rationale that “the Attorney General’s interim rulemaking [] involved "a yes or no decision,” rather than a “complex regulatory decision” that involved “nuanced and detailed regulations that greatly benefit from expert regulated entity participation.” Johnson,
As the Supreme Court points out, the Attorney General recognized that his ret-. roactivity decision was not a yes-or-no decision. In the Final Rule, the Attorney General distinguishes between categories of pre-SORNA offenders. See id. (citing the Final Rule and a later SORNA regulatory decision to support its conclusion that “different categories of pre-Act offenders” might warrant “different federal registration treatment”). The Final Rule thus requires jurisdictions to register offenders “who remain in the system as prisoners, supervisees, or registrants, or reenter the systеm through subsequent convictions.” It does not require the registration of “offenders who have fully left the system and merged into the general population.” Final Rule, 73 Fed.Reg. at 38035. Although this distinction is made only for determining if a state is complying with SORNA— rather than what obligations are imposed on the sex offenders themselves, Final Rule, 73 Fed.Reg. at 38035 — the distinction shows that the Attorney General’s decision to make the registration requirements uniformly retroactive was not necessarily an across the board yes or no.
The Fifth Circuit’s Johnson decision offered several other justifications in an effort to show that the complete failure of notice and comment here was harmless.
We find this reasoning unpersuasive. First, the Fifth Circuit’s reasoning misplaces the burden of harmless-error analysis on the defendant. Second, the Fifth Circuit relied on arguments presented in litigation (but not in the Interim Rule) to satisfy the APA’s notice and comment requirements — an approach wholly unsupported by law. See id. at 932. Furthermore, this approach contradicts the longstanding requirement that we restrict our review to the administrative record. Motor Vehicle Mfrs. Ass’n,
The final reason we cannot agree with the Johnson Court’s evaluation of the administrative record is that the record does not support a conclusion that the Attorney General’s evaluation was truly comprehensive. It is true that the Attorney General discussed the potential ex post facto argument against SORNA and sought to justify his rule by linking it to the law’s purpose. Interim Rule, 72 Fed.Reg. at 8896. But the Interim Rule is not all inclusive. It does not respond to several arguments addressed in the Final Rule that were “concerns of a more practical nature.” These included “difficulties in finding older convictions and determining whether registration is required for them under SOR-NA’s standards” and concerns about whether Congress’ delegation of the retro-activity question should be construed narrowly out of concerns for fairness. Final Rule, 73 Fed.Reg. at 38031. Furthermore, there is no evidence that the Attorney General considered an alternative to across-the-board retroactivity for all sex offenders in the Interim Rule. These gaps in the Interim Rule’s justification — along with the more natural reading of the rule as a reassertion of the Attorney General’s interpretation of SORNA in an effort to silence dissenters — all suggest that the Government has failed to demonstrate that the conclusion it reached was truly the only one available.
The Fifth Circuit also declared that “Johnson neither proposes comments he would have made during a comment period nor did he choose to involve himself in the post-promulgation comment period.” Johnson,
This argument fails because it does not recognize that the prejudice-causing event is the complete absence of notice and comment on the Interim Rule — rather than the Final Rule — from anyone. Fundamentally, the Johnson Court’s argument is that defendants like Reynolds are not prejudiced when they have shown no interest in participating in the notice and comment period. But, as the Fifth Circuit notes, there is nothing that requires a defendant to do so before a court may find prejudice. Id. If a comment period had been provided, others who could have asserted his interest — such as public defenders and public-interest groups — would almost certainly have weighed in. See, e.g., 3d Supp. App’x at 102-07 (post-promulgation com
The remaining justification offered by the Fifth Circuit is that “the final rulemak-ing process with full APA comment did not change the Attorney General’s decision.” Id. at 932-33. This also cannot support a finding of no prejudice, for it would allow agencies to avoid notice and comment by simply issuing an interim rule and subsequently adopting it as the final rule. See Hanover Potato Prods., Inc. v. Shalala,
Our rejection of each of the reasons offered by the Fifth Circuit, upon which the Government relies here, leaves the Government empty-handed. The Government cannot show that the process used to promulgate the Interim Rule satisfies the purposes of § 553 or that the substantive rule was so inescapable that we would have reversed the Attorney General if he had taken an alternative approach.
Notes
. Compare United States v. Johnson,
. Compare Gould,
. Compare Johnson,
. Shenandoah was decided by a different panel of this Court shortly before this panel’s first decision in this case. The defendant in Shenandoah asserted the same arguments (plus an additional one based on the right to travel) brought by Reynolds in his first appeal to this panel: “that SORNA violated the Non-Delegation Doctrine, the Administrative Procedure Act, the Ex Post Facto Clause, the Due Process Clause, the Commerce Clause, the Tenth Amendment and his right to travel.”
Central to Shenandoah’s holding that the defendant lacked standing for his nondelegation and APA claims was its interpretation of SOR-
The defendant lacked standing to raise his Tenth Amendment claim because, at the time of the decision, private parties were thought to be unable to assert Tenth Amendment claims absent the involvement of a State. Id. at 161-62. This holding was rejected by the Supreme Court in Bond v. United States, — U.S. -,
. 42 U.S.C. § 16913(b) provides that
[t]he sex offender shall initially register (1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or (2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.
. As we noted in footnote 4, our previous holding that Reynolds lacked standing to assert his Tenth Amendment challenge has also been overruled by the Supreme Court’s decision in Bond,
. We describe this regulation as the Final Rule because the partiеs have presented it as such. But our description is not intended to express our view on whether this 2008 action or a later action in 2010 actually finalized the Interim Rule. See Final Rule, 73 Fed.Reg. at 38030; Applicability of the Sex Offender Registration and Notification Act, 75 Fed.Reg. 81849-01, 81850 (Dec. 29, 2010) [hereinafter "2010 Final Rule"]. Accordingly, our description of the 2008 guidelines as the Final Rule should not be interpreted to endorse the view that the 2008 action created binding rules. The Attorney General appears to do just that in relation to the Sixth Circuit's use of the same language in United States v. Utesch,
. The text of 5 U.S.C. § 706(2)(A) & (2)(D) is:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall ... (2) hold unlawful and set aside agency action, findings, and conclusions found to be:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(D) without observance of procedure required by law.
. This concern is only increased by the legal support Schweiker relies on for its inclusion of arbitrary and capricious review. The Schweiker Court cites to an American Iron & Steel Institute v. EPA decision that is different from the American Iron & Steel discussed in our good cause analysis here. The case Schweiker relies on for arbitrary and capricious review only addresses issues other than procedural defect. Am. Iron & Steel Inst. v. EPA, 526 F.2d 1027, 1035, 1042, 1045, 1047 (3d Cir.1975) (analyzing arguments related to the EPA's power to promulgate the rule, the nature of that power, and the substance of the rule itself). Section 553’s good cause provision was not at issue in that decision. Schweiker's reliance on it as informing a determination as to the standard that should be applied in good case cases is therefore questionable.
. Having the benefit of further development on the good cause question, the Eleventh Circuit's conclusion is mоre developed than the Fourth Circuit’s reasoning, which was the first offered on the good cause question. Compare Dean,
. Our prejudice analysis is limited to the Attorney General’s lack of good cause to waive the notice and comment requirements
. The reasoning found in Johnson largely tracks Judge Wilson’s arguments in his Dean concurrence,
Judge Wilson includes an additional argument based on the 1995 Administrative Conference of the United States recommendation regarding good cause exceptions:
Where an agency has used post-promulgation comment procedures, responded to significant adverse comments and ratifies or modified the rule as appropriate, the Conference suggests that a reviewing court generally should not set aside that ratified, or modified rule solely on the basis that adequate good cause did not exist to support invoking the exemption initially. At this stage, the agency’s initial flawed finding of good cause should normally be treated as harmless error with respect to the validity of the ratified or modified rule.
Adoption of Recommendations, Recommendation 8-32, "The 'Good Cause' Exemption from APA Rulemaking Requirements,” 60 Fed.Reg. 43108, 43112 (Aug. 18, 1995) (emphasis added). The emphasized text shows why Judge Wilson’s reliance on the recommendation is unpersuasive. The conference’s focus is on the final rule, not the initial rule. Reynolds does not challenge the validity of the Final Rule, thereby rendering the conference’s statement inapposite.
. The failure of the proffered justifications also shows that Reynolds can demonstrate prejudice even if he had the burden of showing prejudice. In this situation, Reynolds could carry his burden by showing that the agency completely failed to provide notice and comment and that the result was not inescapable. See City of Waukesha,
. In addition to the reasons offered, we note that prejudice might be found here because our holding that the Interim Rule is invalid could necessarily mean that there is no legal basis for Reynolds’s conviction. At oral argument, the Government contended that the Interim Rule could still serve as the basis for his conviction even if we were to hold that it was illegally promulgated. Oral Arg. Tr. at 34:23-24 to 35:1-9. How this can be is unclear. Section 706 requires courts to "hold unlawful and set aside agency action, findings, and conclusions” that cannot withstand review under the standards provided in the section. Our ruling that the Interim Rule cannot survive review under any standard in § 706 would thus seem to require that we "hold
Prejudice follows because prejudice appears to be presumed when courts conclude that the law underlying the defendant's conviction is invalid. See United States v. Stevens, 559 U.S. 460,
These issues have not been fully briefed and there is an adequate alternative basis for finding prejudice. Accordingly, we decline to resolve both whether determining that an administrative rule is invalid under § 706 is comparable to concluding that a statute is invalid under the constitution and whether the lack of legal basis for an indictment constitutes structural error.
Concurrence Opinion
concurring.
I join the judgment vacating Reynolds’ conviction. I concur with the majority in regard to the applicable standard of review and the Attorney General’s lack of good cause to forego the APA’s notice and comment procedures. However, I take a different approach to the prejudice analysis under 5 U.S.C. § 706.
Because the interests at stake in this matter are criminal in nature, the government bears the burden of showing that the failure to provide notice and comment was harmless. Maj. Op. Part II.C (citing Shinseki v. Sanders,
The substantive conclusion of the Interim Rule concerned one specific aspect of SORNA — pre-Act offenders’ obligations under the statute. See 42 U.S.C. § 16913; 72 Fed.Reg. 8894 (“The Department of Justice is publishing this interim rule to specify that the requirements of [SORNA] apply to sex offenders convicted ... before the enactment of that Act.”); see also 28 C.F.R. § 72.1. The substantive conclusion of the Interim Rule did not concern the other prominent aspect of SORNA — incorporation of standards by non-federal jurisdictions. See 42 U.S.C. § 16912; 72 Fed.
Based on the Supreme Court’s recognition of the “practical problems” that arose “when the Act sought to apply the new registration requirements to pre-Act offenders,” the majority reasons that the Interim Rule’s conclusion was not the result of a simple “yes-or-no decision.” Maj. Op. Part II.C (quoting Reynolds v. United States, — U.S.-,
Notably, the Supreme Court also stated that “[tjhese same considerаtions might have warranted different federal registration treatment of different categories of pre-Act offenders.” Id. However, this observation was based on a provision of the final guidelines that also pertained to incorporation of SORNA’s standards by non-federal jurisdictions. Id. (citing 73 Fed. Reg. 38035-36 and 38046-47). The provision allows non-federal jurisdictions to meet SORNA’s incorporation requirements without registering pre-Act offenders who left the system after they were no longer required to register. 73 Fed.Reg. 38035-36 and 38046-47.
Because the Attorney General eventually distinguished between pre-Act offenders still in the system and pre-Act offenders who left the system with regard to the obligations of non-federal jurisdictions, the majority reasons that the same distinction could have been made with regard to the obligations of sex offenders themselves, if the Attorney General had properly observed the thirty-day notice and comment period when promulgating the Interim Rule. Maj. Op. Part II.C.
However, even if a thirty-day notice and comment period could have resulted in SORNA’s requirements not applying to pre-Act offenders who had already left the system, this hypothetical change would not have affected a pre-Act offender such as Reynolds, who was still in the system (and was required to register as a sex offender) at the time that he was convicted. The prejudice analysis should focus specifically on Reynolds, rather than on a hypothetical defendant who is not before the Court. See United States v. Johnson,
The question for this Court is whether the Attorney General, in accordance with the language of the statute, could have declined to apply SORNA’s requirements to pre-Act offenders who were still in the system. The answer appears to be yes. There is nothing in the statutory language that would have prevented the Attorney General from declining to apply SORNA’s requirements to pre-Act offenders still in the system. The retroactivity decision was not a forgone conclusion, even for pre-Act offenders such as Reynolds. Thus, the substantive conclusion reached in the absence of notice and comment was not the
In sum, Reynolds was prejudiced by the Attorney General’s failure to abide by the APA’s notice and comment procedures. For this reason, I concur in the judgment vacating Reynolds’ conviction.
Concurrence Opinion
concurring:-
I join the opinion and judgment of the Court. I write only to note additional facts that, for me, provide additional support for the conclusion we reach.
Quoting from the Act’s statement of its purpose, the AG summarized his position regarding the good cause issue as follows:
[Notice and comment] would thwart the legislative objective of “proteet[ing] the public from sex offenders and offenders against children” by establishing “a comprehensive national system for the registration of those offenders,” SORNA § 102, because a substantial class of sex offenders could evade the Act’s registration requirements and enforcement mechanisms during the pendency оf a proposed rule and delay in the effectiveness of a final rule.
Interim Rule, 72 Fed.Reg. at 8896-97 (citing 5 U.S.C. § 653(b)(B)).
When SORNA was adopted, all 50 states had registration requirements for sex offenders with criminal penalties for non-compliance, and Congress had made the failure of sex offenders to register in accordance with state law a federal offense, albeit one with lesser penalties than SORNA. 42 U.S.C. § 14071. The purpose of SORNA was to make existing law more efficient by creating “a comprehensive national system” of registration. Both Congress and the AG realized that the creation of such a system would take a substantial period of time. As of the date the Interim Rule was adopted, no state had implemented SORNA, and the Act gave states up to three years to do so. 42 U.S.C. § 16924. The AG provides no explanation for how on February 28, 2007, a thirty day period for comment would have posed the kind of imminent and serious harm that would support a finding of good cause.
In short, I agree with the Ninth Circuit in United States v. Valverde,
“The issue is not whether sex offenders should register, but rather whether the addition of one more layer of federal protection atop a substantial quilt of existing state and federal laws merited emergency treatment.” See Dean,604 F.3d at 1283 (Wilson, J. concurring). Judge Wilson convincingly reasoned that “the existence of stringent state and federal criminal sanctions on the books at the time the [interim] regulation was promulgated obviated the case for an emergency.” Id. (footnote omitted). The Attorney General provided no reason why, in view of the existing statutory regime that already imposed registration requirements on pre-SORNA sex offenders, it was necessary for the interim rule to be made effective immediately, without providing any opportunity for notice and comment.
As a result, the AG has failed to carry his burden of proving good cause.