Third Circuit Weighs in on SORNA Interim Rule: Failure to Follow APA Procedures Means SORNA Cannot Apply Retroactively

In United States v. Reynolds, No. 08-4747, the Court held that the DOJ’s interim rule applying SORNA retroactively to defendants convicted before its enactment, is invalid due to DOJ’s failure to follow proper APA procedures. (The case was on remand from the Supreme Court, which ruled that Reynolds had standing to raise the APA issue.)

The Court considered three questions in Reynolds: (1) the proper standard of review — abuse of discretion or de novo — for reviewing an agency’s decision to forego notice and comment; (2) whether the Attorney General had "good cause" to waive the notice and comment requirement in promulgating the interim rule; and (3) if the Attorney General lacked "good cause," whether the failure to comply with the APA prejudiced Reynolds. There are Circuit splits on each of these issues (carefully described in the opinion)making it possible, if not probable, that the Supreme Court will take up some or all of the questions at some point.

The Court did not decide the first question on standard of review (which appears to be a thorny question on which even prior Third Circuit opinions are in tension). It concluded that even under the most deferential standard, the Attorney General’s decision to forego APA procedures did not pass muster.

The Attorney General had cited two main reasons as "good cause" for foregoing notice and comment. First, that delaying adopting of the rule would mean that the law effectively would not be retroactive; and second, that public safety required making the rule retroactive immediately. The Court rejected both. The first put the cart before the horse: the purpose of the notice and comment period would have been to seek input on whether retroactivity was the right result at all. The second was too generic: Congress knew that sex offenders were a threat to public safety when it enacted the law, but chose neither to legislate retroactivity nor to grant DOJ permission to evade the APA’s requirements. DOJ offered no additional evidence to support its "perception of urgency" in enacting the interim rule without notice and comment.

Because of the liberty interest at stake in a criminal proceeding, the Court placed the burden on the government to show that Reynolds was not prejudiced by the failure to follow the APA procedures. Here, given the complete failure to follow procedure, the government cannot meet that burden. There was no opportunity to develop a record, test the regulations, and ensure fairness to affected parties by the process, and there is no evidence that the Attorney General maintained a flexible and open-minded attitude toward the rulemaking.

Congratulations to the W.D. Pa. team (especially Candace Cain, Jay Finkelstein, Christopher Brown, and Lisa Freeland) on a great win!