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APA Circuit Split – Notice and Comment Good Cause Bypass in SORNA Retroactivity Regulations

Posted in Judicial Review & Remedies, Regulatory Process

The United States Court of Appeals for the Third Circuit, on remand from the United States Supreme Court (SCOTUS) in United States v. Reynolds, summarized and joined the complex circuit split on three Administrative Procedure Act (APA) questions applied to the retroactivity of the Sex Offender and Registration Notification Act’s (SORNA) registration requirements.  The first time around, SCOTUS decided only a constitutional standing issue – the Solicitor General now has a clear path to present the key APA issues:  whether the Attorney General had good cause to bypass notice and comment because it would be impracticable, unnecessary, or contrary to the public interest.

The Tale:  In 2001, Reynolds was convicted of sexually assaulting a child in Missouri; the conviction required him to register as a sex offender, which he did for the next six years.  Meanwhile, Congress passed SORNA in 2006, requiring sex offenders convicted after its enactment to register.  SORNA authorized the Attorney General to apply SORNA retroactively.  The Attorney General adopted a rule in February 2007 that made SORNA’s registration requirements retroactive to sex offenders convicted before SORNA’s enactment – e.g. Reynolds – on February 28, 2007.  In September 2007, Reynolds moved to Pennsylvania but failed both to update his Missouri registration and to register in Pennsylvania.  Reynolds was arrested for violating parole and police discovered the registration violations in October 2007.  Reynolds pled guilty to violating SORNA’s registration requirements but reserved the right to appeal.

In the first appeal, the 3rd Circuit upheld the conviction against Commerce Clause, Ex Post Facto, and Fifth Amendment arguments and decided that Reynolds lacked standing to assert his APA, nondelegation, and other arguments.  Reynolds sought review in SCOTUS.   SCOTUS granted limited review, and reversed, holding that Reynolds had standing to assert his APA and nondelegation arguments, in Reynolds v. United States.  SCOTUS held that SORNA does not apply automatically to require offenders to register; offenders convicted before SORNA became effective are not required to register until the Attorney General promulgated a valid regulation requiring them to register.  On remand, the 3rd Circuit was presented with the substantive APA issues.

The Rule & the Exceptions:  The APA generally provides that an agency published a proposed rule, receive public comments, and respond to the significant public comments before promulgating a rule

Except … 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 [1] impracticable, [2] unnecessary, or [3] contrary to the public interest.

5 U.S.C. § 553(b)(B).  Each of the three exceptions has a long and complicated history and interpretation, but the bottom line is that agencies attempt to use the exceptions when they are in a hurry in order to shorten the regulatory process.  Whether an agency has justified an exception to the general rule is often the focus of substantial litigation – here Question 2 of the 3rd Circuit’s Q&A.

Circuit Splits Q&A:  The 3rd Circuit nicely structured the questions it faced – a structure useful to practitioners.  The three questions – and the 3rd Circuit’s answers:

  1. What is the appropriate standard of review of an agency’s assertion of good cause in waiving the APA’s notice and comment requirements?   The 5th and 11th Circuits apply the arbitrary and capricious standard for reviewing good cause determinations, the 4th and 6th Circuits appear to use de novo review but have not been explicit; and the 9th Circuit has avoided the issue.  The 3rd Circuit now joins the 9th Circuit by deciding question 2 first.
  2. Did the Attorney General have good cause to waive the notice and comment in promulgating the rule?   The 4th and 11th Circuits held that the Attorney General had good cause to waive notice and comment, but the 5th, 6th, and 9th Circuits held that he did not.  The 3rd Circuit joins the 5th, 6th, and 9th Circuits, now finding that the Attorney General lacked good cause, under either standard of review in question 1.
  3. If the Attorney General lacked good cause to waive notice and comment, was the defendant prejudiced by the failure to comply with the APA’s?  The 5th Circuit has held that the Attorney General’s lack of good cause did not prejudice defendants; the 6th Circuit held that it did prejudice the defendant.  The 3rd Circuit joins the 5th Circuit in finding prejudice …

and vacated Reynolds’s conviction.  SORNA’s history makes these determinations highly specific to SORNA and the specific facts – the District of Columbia Circuit has not faced the issue and, thus, the most prominent of APA deciders have not addressed the issues.

Return to SCOTUS:  These circuit splits are significant, well-defined, and affect a significant issue involving a substantial number of prosecutions.  The Solicitor General may seek certiorari to take this case back to SCOTUS, but he has his choice of cases (somewhat) to argue for review of the case that he best believes will result in SCOTUS affirming the Attorney General’s promulgation of the rule without advance notice and an opportunity to comment.  The Solicitor General has 90 days to decide whether to seek certiorari in Reynolds, but may seek an extension to ensure that he can make that decision with the pending Kebodeaux decision in hand.

Kebodeaux SidebarUnited States v. Kebodeaux, U.S. No. 12-418, will be argued in SCOTUS on April 17, 2013, on two different questions:

  1. whether the 5th Circuit erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender; and
  2. whether the 5th Circuit erred in holding that Congress lacks the constitutional Article I authority to enact new criminal penalties as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted.

Even if the Court agrees with the 5th Circuit that Congress does not have the authority to enact SORNA in these limited circumstances the issue of validity of the regulations will not become irrelevant – many other State felons are affected by SORNA’s retroactivity regulations.