## Facts

- In 1995, Undra Demetrius Johnson was convicted of a qualifying sex offense, triggering state-law registration duties.
- In July 2006, Congress enacted SORNA to create a national sex-offender registration framework and authorized the Attorney General to specify SORNA’s applicability to offenders convicted before SORNA’s enactment.
- On February 28, 2007, the Attorney General issued an interim rule declaring SORNA’s registration requirements applicable to all sex offenders, including those convicted pre-SORNA, and made it effective immediately by invoking the APA’s good-cause exception to bypass pre-promulgation notice and comment.
- The interim rule’s stated rationale was that delay would impede registration of pre-SORNA offenders and hinder immediate public-protection efforts.
- The Attorney General accepted post-promulgation comments through April 30, 2007, and later issued a final rule in July 2008 after notice-and-comment procedures.
- In 2008, Johnson traveled interstate to Mississippi and did not register there as a sex offender.
- Federal authorities charged Johnson under 18 U.S.C. § 2250(a) for interstate travel and knowingly failing to register as required by SORNA.

## Issues

1. Whether the Attorney General validly invoked the APA good-cause exception to issue the February 2007 interim rule making SORNA applicable to pre-SORNA offenders without pre-promulgation notice and comment.
2. If the interim rule was procedurally invalid, whether SORNA nonetheless applied to pre-SORNA offenders at the time of Johnson’s 2008 travel and failure to register.
3. Whether a § 2250(a) conviction can stand when the predicate retroactivity specification was not lawfully promulgated.

## Decision

- The Fifth Circuit vacated Johnson’s conviction and remanded.
- The court held the February 2007 interim rule was invalid because the Attorney General did not show good cause sufficient to dispense with pre-promulgation notice-and-comment rulemaking.
- Because the interim rule was invalid, there was no valid specification making SORNA applicable to pre-SORNA offenders during the period of Johnson’s charged conduct (before the July 2008 final rule).
- The court did not reach Johnson’s constitutional challenges, resolving the case on APA and statutory grounds.

## Legal Principles

- The APA requires notice-and-comment procedures for substantive rules unless a narrow good-cause exception applies; the agency bears the burden to justify bypassing those procedures.
- Generalized public-safety and policy rationales, without a demonstrated need making notice and comment impracticable or contrary to the public interest, do not establish good cause.
- A substantial agency delay between statutory enactment and issuance of an “emergency” rule may undermine a claimed urgency supporting good cause.
- When a statute conditions application to a class (here, pre-enactment offenders) on an agency “specification,” criminal liability cannot rest on an invalid or procedurally defective specification.
- Courts may apply constitutional avoidance and decline to decide constitutional claims when a case is resolved on administrative-law or statutory grounds.

## Conclusion

The Fifth Circuit set aside Johnson’s SORNA failure-to-register conviction because the Attorney General’s 2007 interim rule purporting to apply SORNA to pre-enactment offenders was not validly issued under the APA, leaving no lawful basis to treat Johnson as federally required to register at the time of his 2008 conduct.


United States v. Johnson, 632 F.3d 912 (5th Cir. 2011)