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Showing posts from March, 2013

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…