## Facts

- Billy Joe Reynolds was convicted in Missouri in 2001 of sexually assaulting a seven-year-old girl and was required to register as a sex offender.
- Congress enacted the Sex Offender Registration and Notification Act (SORNA) in 2006, authorizing the Attorney General to specify SORNA’s applicability to offenders convicted before enactment.
- On February 28, 2007, the Attorney General issued an interim rule making SORNA’s registration requirements applicable to all pre-SORNA offenders and made it effective immediately, invoking the APA “good cause” exception to bypass notice-and-comment procedures.
- Reynolds later moved from Missouri to Pennsylvania and did not register under SORNA as required by the interim rule.
- Reynolds was indicted and convicted in the Western District of Pennsylvania under 18 U.S.C. § 2250(a) for interstate travel and knowing failure to register.
- After the Supreme Court held that pre-SORNA offenders were not covered until the Attorney General validly specified retroactive applicability, the case returned to the Third Circuit to decide whether the interim rule complied with the APA.

## Issues

1. What standard of review governs an agency’s invocation of the APA “good cause” exception to notice-and-comment rulemaking?
2. Whether the Attorney General had “good cause” under 5 U.S.C. § 553(b)(B) to issue SORNA’s retroactivity interim rule without notice and comment.
3. If the interim rule violated the APA, whether the error prejudiced Reynolds such that his § 2250(a) conviction must be vacated.

## Decision

- The Third Circuit did not select a definitive standard of review because the Attorney General’s good-cause finding failed even under the most deferential review.
- The court held the Attorney General lacked good cause to bypass notice and comment when issuing the retroactivity interim rule.
- The court held Reynolds was prejudiced by the APA violation because he lost the opportunity to participate in rulemaking in a way that could have affected the rule’s timing or content, and the government did not show harmless error.
- The court vacated Reynolds’s conviction under 18 U.S.C. § 2250(a).

## Legal Principles

- The APA’s good cause exception, 5 U.S.C. § 553(b)(B), is narrowly construed; an agency must show that notice and comment is “impracticable, unnecessary, or contrary to the public interest.”
- Avoiding uncertainty about a rule’s scope, or relying on generalized public-safety concerns, does not by itself establish good cause to dispense with notice-and-comment procedures.
- A substantial agency delay before issuing an “emergency” rule can undermine a claim that additional time for notice and comment would be contrary to the public interest.
- When a criminal prosecution depends on a substantive rule promulgated in violation of the APA, the conviction may be set aside unless the government carries its burden to show the procedural error was harmless.

## Conclusion

The Third Circuit vacated Reynolds’s SORNA failure-to-register conviction because the Attorney General’s interim retroactivity rule was issued without required notice and comment and without valid good cause, and the government failed to show the APA violation was harmless to Reynolds.


United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013)